THE MAKING OF THE CONSTITUTION FOR ‘THE FEDERATED STATES OF EUROPE’ The Federal Alliance of European Federalists (FAEF) Leo Klinkers (ed.) 1 Copyright ©: the Federal Alliance of European Federalists (FAEF). No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without prior written permission of FAEF: administration@faef.eu. 2 CONTENT FOREWORD ...................................................................................................................................................... 5 1. CONSTITUTION FOR ‘THE FEDERATED STATES OF EUROPE’ .......................................................................... 8 THE PREAMBLE ....................................................................................................................................................... 8 ARTICLE I – THE FEDERATION, THE RIGHTS, AND A WORLD FEDERATION ............................................................................ 9 ARTICLE II – THE LEGISLATIVE BRANCH ...................................................................................................................... 10 ARTICLE III – THE POWERS AND TASKS OF THE LEGISLATIVE BRANCH ............................................................................... 12 ARTICLE IV - THE EXECUTIVE BRANCH ....................................................................................................................... 15 ARTICLE V – THE POWERS AND TASKS OF THE EXECUTIVE BRANCH .................................................................................. 17 ARTICLE VI – THE JUDICIAL BRANCH ......................................................................................................................... 18 ARTICLE VII – THE CITIZENS, THE STATES, AND THE FEDERATION .................................................................................... 20 ARTICLE VIII – AMENDING THE CONSTITUTION ........................................................................................................... 23 ARTICLE IX – FEDERAL LOYALTY ............................................................................................................................... 23 ARTICLE X – RATIFICATION OF THE CONSTITUTION ....................................................................................................... 23 2. MEMORANDUM OF EXPLANATION OF THE CONSTITUTION ....................................................................... 24 GENERAL CONSIDERATIONS ..................................................................................................................................... 24 EXPLANATION OF THE PREAMBLE.............................................................................................................................. 28 EXPLANATION OF ARTICLE I - THE FEDERATION, THE RIGHTS, AND A WORLD FEDERATION ................................................... 38 EXPLANATION OF ARTICLE II – THE LEGISLATIVE BRANCH .............................................................................................. 46 EXPLANATION OF ARTICLE III - THE POWERS AND TASKS OF THE LEGISLATIVE BRANCH ........................................................ 57 EXPLANATION OF ARTICLE IV – THE EXECUTIVE BRANCH............................................................................................... 68 EXPLANATION OF ARTICLE V – THE POWERS AND TASKS OF THE EXECUTIVE BRANCH.......................................................... 72 EXPLANATION OF ARTICLE VI - THE JUDICIAL BRANCH .................................................................................................. 74 EXPLANATION OF ARTICLE VII - THE CITIZENS, THE STATES, AND THE FEDERATION ............................................................. 78 EXPLANATION OF ARTICLE VIII - CHANGING THE CONSTITUTION ..................................................................................... 80 EXPLANATION OF ARTICLE IX - FEDERAL LOYALTY ........................................................................................................ 80 EXPLANATION OF ARTICLE X - RATIFICATION OF THE CONSTITUTION ................................................................................ 80 ACKNOWLEDGEMENTS ........................................................................................................................................... 81 3. IN-DEPTH STUDIES ...................................................................................................................................... 84 ABOUT FUNDAMENTAL ASPECTS ON FEDERALIZING EUROPE ......................................................................... 85 DEFINITION AND VALUE OF FEDERALISM .................................................................................................................... 86 Herbert Tombeur ......................................................................................................................................... 86 UNITARY ASPECTS OF CENTRIPETAL AND CENTRIFUGAL FEDERATIONS .............................................................................. 96 Leo Klinkers .................................................................................................................................................. 96 SPINELLI'S ROLE ON THE FEDERALIZATION OF EUROPE: ................................................................................................ 104 Mauro Casarotto ....................................................................................................................................... 104 ABOUT FEDERAL CONSTITUTIONAL LAW MAKING ......................................................................................... 116 A STUDY IN THE FIELD OF COMPARATIVE FEDERAL CONSTITUTIONS ............................................................................... 117 Giuseppe Martinico ................................................................................................................................... 117 THE FEDERATED STATES OF EUROPE AS A DEMOCRATIC STATE FOUNDED ON THE RULE OF LAW ........................................... 129 Frans Tonnaer ............................................................................................................................................ 129 ABOUT NUMERICAL, PARTICIPATORY AND COMPETENT REPRESENTATION .................................................. 142 DYNAMIC SIZING AND RANKED VOTING ................................................................................................................... 143 Lars N. Christensen .................................................................................................................................... 143 CITIZENS’ PARTICIPATION ...................................................................................................................................... 152 Ivan Gil Carretero ....................................................................................................................................... 152 A FUNDAMENTAL NEW LOOK AT THE REQUIREMENTS FOR HOLDING POLITICAL OFFICE ....................................................... 158 Peter Hovens .............................................................................................................................................. 158 ABOUT COMMON INTERESTS ......................................................................................................................... 165 THE IMPORTANCE OF A COMMON EUROPEAN DEFENSE............................................................................................... 166 Ingo Piepers ............................................................................................................................................... 166 DOES FEDERALIZING EUROPE STRENGTHEN ECONOMIC STABILITY? ................................................................................ 170 Mozes Wilhelm Marinho Sanches Junior ................................................................................................... 170 3 ABOUT EMERGING FEDERATIONS .................................................................................................................. 175 TOWARDS A FEDERAL SPAIN IN A FEDERAL EUROPE? .................................................................................................. 176 Javier Giner ................................................................................................................................................ 176 ABOUT THE ALFA AND OMEGA OF FEDERALISM ............................................................................................ 188 THE TORAH IN THE CONSTRUCTION OF A FEDERAL EUROPE, INCLUDING RUSSIA............................................................... 189 Frans M. Vermeulen MA ............................................................................................................................ 189 ATTRIBUTION OF VALUES AND VIRTUES IN ‘THE FEDERATED STATES OF EUROPE’ ............................................................. 196 Berend W. Scheperboer : : ......................................................................................................................... 196 THE CONCEPT OF ‘FEDERATION’ IN THE CONSTITUTION FOR THE FEDERATION OF EARTH .............................................. 201 Glen T. Martin ............................................................................................................................................ 201 4 FOREWORD The making of this book began with the European Federalist Papers Between August 2012 and May 2013, Herbert Tombeur & Leo Klinkers wrote the European Federalist Papers. A document of twenty-six papers, including a draft ten-article federal Constitution for Europe. They derived the motive for writing this study from Robert A. Levine – former high official of the United States Federal Government. Levine wrote in the New York Times of 9 January 1999 an article entitled: “What the EU Needs Is a Copy of ‘The Federalist Papers’”. An early warning for EU’s identity crisis Levine made this remark at the start of Europe’s Economic and Monetary Union (EMU), explaining that in the quest for full economic integration, Europe could learn some useful lessons from the United States. Well, this has not happened. No lessons learned. Europe began an economic adventure without the foundation of a proper form of governance. It maintained its treaty-based form of intergovernmental governing instead of federal governance, based on a democratic federal Constitution. EU’s present identity crisis – as a result of increasing internal conflicts and a meaningless geopolitical position in a globalizing world - is making the consequences of that shortcoming clear. First try to convene a Citizens’ Convention: failed Because nobody picked up Levine's message, Herbert Tombeur and Leo Klinkers decided to respond by writing the European Federalist Papers. Then they organised – in cooperation with the Romanian Jean Monnet Association - in 2013 a Citizens' Convention in Bucharest, to acquire improvement of their draft federal Constitution. Bucharest was chosen as the venue of the Convention to boost the awakening democratic independence of countries in Eastern Europe by making it clear that, as sovereign nations, they would be welcome as members of a democratic federal Europe. The Rumanian Parliament – by then relieved of its dictator Nicolae Ceausescu - provided the space for a week of deliberation by sixty people. Some of them experts on federal state formation, others pro-European federalists with good arguments for replacing the treaty-based EUsystem with a federal system based on a democratic constitution. However, it turned out that this Citizens’ Convention could not take place due to a lack of sufficient financial resources. Princess Europe The intended Citizens' Convention in Bucharest was decorated by this symbol from Greek mythology, symbolizing Europe as a dancing princess. It was not only meant as an homage to ancient Greece, the birthplace of profound thoughts on democracy, but also to show the essence of a federal form of government: the sovereign whole, embodied in the person and the sovereign parts of the whole, represented in the flags. Establishing the Federal Alliance of European Federalists (FAEF) Though this attempt to organize this Citizens’ Convention failed the fire kept burning. Under the adage of 'Federating the Federalists' - branded by the Italian federalists Lorenzo Sparviero (†) and Mauro Casarotto - the Federal Alliance of European Federalists (FAEF, www.faef.eu) was founded in 2018. Second try to establish a Citizens’ Convention: succeeded When, in 2021, the European Union launched a conference on the future of the European Union - for the second time in twenty years, fighting against the growing signs of an identity crisis - FAEF decided in May 2021 to organise its own Citizens' Convention. The aim: to produce through extensive peer-review of the original ten-article federal Constitution of 2012-2013 a better draft; retaining the original structure of a Preamble, ten Articles, and an Explanatory Memorandum. A compact, democratic and effective federal Constitution of, by and for the people of Europe for a federation, named ‘The Federated States of Europe’. A Constitution that should replace the undemocratic, ineffective and conflicting treaty-based system of the European Union. It is a scientifically based refutation of the correctness of the obstinate assertion by EU politicians from 1946 to today that it is possible to build a European federation on the basis of (constantly amended) treaties. The FAEF Citizens’ Convention This FAEF Citizens' Convention lasted six months, from 2 October 2021 to 31 March 2022. The seventy members - also called the Group 55+ (after the number of 55 members of the Philadelphia Convention of 1787, the founders of the first federal constitution) - who did this remarkable work are listed here. The result is a modern federal constitution for the representation of common European interests, derived from valuable insights from European philosophers, built on academic standards of federal statehood, embedded in the dominant features of European identity, preserving the sovereign identities of the member states, and with revolutionary provisions on citizens’ participation. The multi-disciplinary result of the extensive peer-review 6 Because this FAEF Convention took place as an extensive peer-review, aspects of applied sciences were consistently worked on. Not only of constitutional law, but also of aspects of for example – political philosophy, systems theory, cybernetics, theology, organisation theory, social psychology, communication theory, participatory theory in the context of modern views on democracy, mathematics, thermodynamics and psychoanalysis. Supporting the outcome of the Citizens’ Convention by a series of in-depth studies While reviewing the original 2012-2013 constitutional draft, it turned out that some members of the Citizens' Convention had a lot of additional information for which there was no room in the Explanatory Memorandum. This led the FAEF Board to the decision to make room for additional and substantiating in-depth studies. In this way, a two-fold peer review emerged: one through the composition of an improved constitution, and one to deepen elements of it. Aiming at ratification of the Constitution by the Citizens of Europe In the course of 2022, FAEF will distribute this book with the aim of preparing for the ratification of this federal Constitution by the Citizens of Europe. Why this priority for the Citizens of Europe? Because the basis of this book is embodied in the adage ‘All sovereignty rests with the people’. Board of the Federal Alliance of European Federalists (FAEF) This book, which was realised with the efforts of dozens of contributors, was composed under the direction of the Board of the Federal Alliance of European Federalists: o Leo Klinkers, President o Mauro Casarotto, Secretary General o Peter Hovens, Treasurer o Martina Scaccabarozzi, Executive Member Communications o Javier Giner, Executive Member Politics The Hague, May 2022 7 1. CONSTITUTION FOR ‘THE FEDERATED STATES OF EUROPE’ From October 2021 to the end of March 2022 FAEF's Citizens' Convention improved a tenarticle draft of this Constitution. Thus, it is the result of an extended peer review, leading to a comprehensive structure of the constitutive and institutional elements of a centripetal federation. A federation, built from the bottom up, for the Citizens of sovereign European states, that want to create a centre that looks after their common European interests, while preserving each country’s sovereignty, culture and traditions. *** The Preamble We, the Citizens of Europe, moved by the need and the will to form a more perfect and durable union, with the objective and duty of taking care of the common European good, protect and ensure the greatest degree of liberty and well-being for its peoples, establish The Federated States of Europe - hereafter the Federation - by ratifying this Constitution, I. Laying down the principle that it should support our quest for happiness, based (a) on working relentlessly to preserve the diversity of all life forms on Earth and to protect and care for the natural environment for next generations; (b) on securing freedom to live one’s life without impeding the freedom of others; (c) on elimination of all forms of discrimination on the basis of respect for the diversity of cultures, languages, ethnicities, beliefs, and sciences of the Citizens within the Federation, as well as on the protection of their fundamental rights and freedoms; (d) on encouraging trust and solidarity among all countries and regions, in Europe as well outside Europe; (e) on human compassion, respect and support to achieve happiness for Citizens from outside the Federation who want to live within the Federation in accordance with its laws and the articles of this Constitution; (f) on expecting that in carrying it out, it should bear witness to wisdom and knowledge, human dignity and justice, and integrity, in the full awareness that it derives its powers from the people, that all people on Earth are born equal with regard to dignity and rights, and that no one is above the law, II. Considering further: (a) that the Federation is an integral part of a highly interdependent natural and social system. The ability to realize, preserve and promote its values depends on the global condition of international relationships among countries and on the health of the natural environment; (b) that the Federation repudiates war and violence as an instrument of offence to the liberty of other peoples and as means of settling international conflicts; the Federation 8 favours transnational cooperation and federal structures to ensure peace, justice and prosperity among nations; (c) that this federal Constitution is based on the cultural, religious, and humanist inheritance of Europe, including the considerations and desires of European philosophers to unite Europe in a federation after centuries of conflicts and wars; (d) that the federal system is based on a vertical separation of powers between the Member States and the Federal Authority through which they share sovereignty; (e) that the horizontal separation of the legislative, judicial, and executive branches both at the level of the Federal Authority and at that of the Member States is guaranteed by a solid system of checks and balances. III. Whereas, all Citizens shall have the right to resist any person, organization, institute or authority seeking to abolish this Constitutional order if no other remedy is available, IV. Adopt the following ten articles as the Constitution of the Federation: Article I – The Federation, the Rights, and a World Federation 1. The Federation is a democratic State, founded on the Rule of Law. It consists of sovereign Citizens, democratic constitutional Member States, and a Federal Authority. 2. The Federation shall respect the equality of Citizens and Member States before the Constitution as well as their identities, inherent in their fundamental constitutional and political structures, inclusive of regional and local self-government. 3. The powers not entrusted to the Federation by the Constitution, nor prohibited to the States by this Constitution, are recognised powers of the Citizens and entrusted powers of the Member States, in order to protect the autonomous initiatives of Citizens and Member States, relating to activities of personal or general interest. 4. The Federation sees in the natural needs of every living human being an important source from which agreed rights can be derived. These rights are those as formulated in the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in the Charter of Fundamental Rights of the Federation, whose rights shall have the same legal value as the Constitution. 5. Every Citizen has a right of access to information and documents of the Federation, States, and local Governments and the right to follow the proceedings of the courts and democratically elected bodies. Limitations to this right may be prescribed by law to protect the privacy of any Citizen, or else only for extraordinary reasons. 6. Membership of the Federation after the Federation has entered into force requires ratification of this Federal Constitution by the respective national parliament of the State applying for membership. 7. The Federation will promote a higher degree of World transnational cooperation and may, on conditions of equality with other countries and regions and on the basis of the values expressed in the Preamble to this Constitution, accede and adhere to a World Federation, based on a democratic Earth Constitution. 9 Article II – The Legislative Branch Section 1- The European Congress 1. The Legislative Branch of the Federation lies with the European Congress. It consists of two Houses: the House of the Citizens and the House of the States. 2. The European Congress and its two separate Houses take residence in Brussels unless the Houses agree on a different residence within the territory of the Federation. Section 2 – The House of the Citizens 1. The House of the Citizens is composed of the delegates of the Citizens of the Federation. Each delegate has one vote. The delegates of this House are elected for a term of five years by the Citizens of the Federation who are qualified to vote, united in one constituency, being the constituency of the Federation. They can be re-elected once in succession. The election of the delegates of the House of the Citizens always takes place in the month of May, and for the first time in the year 20XX. They enter office at the latest on June 1st of the election year. Federal elections, their organization and operation, take place based on federal law. 2. The size of the House of Citizens will follow the political and demographic development of the Federation. If the population of the Federation does not exceed four hundred million, the House of the Citizens will consist of four hundred delegates. Should the population exceed 400 million, the number of delegates will be increased by 20 for every additional 25 millions of population. In any case, the total number of delegates of the House of Citizens will not exceed six hundred. 3. Eligible to the House of Citizens are those who have reached the age of eighteen years on June 1st of the election year and are registered as Citizen of one or more States of the Federation during at least seven years. On behalf of the Citizens of the Federation, the House of the Citizens establishes laws on requirements of competence and suitability for the office of delegate. The law regulating the requirements of competence and suitability also regulates the responsibility of transnational political parties in applying and acquiring the requirements by prospective delegates, as well as the role of Citizens in that process. 4. The House of the Citizens shall organize once a year a multi-day meeting with panels of Citizens to gather information on how to improve the realization of the Common European Interests as envisaged in Article III. The law shall determine how the Citizens' panels are composed and how they shall operate, considering that Citizens from each Member State will participate in these panels and that the outcome of these meetings will improve and strengthen the policies on the Common European Interests. 5. The delegates of the House of the Citizens have an individual mandate. They carry out this office without a binding mandate, in the general interest of the Federation. This mandate is incompatible with any other public function and any kind of multiple mandates, nor with a position or such a relationship with European or global enterprises or other organizations as to influence the Federation's decision making. 6. The right to vote in elections for the House of the Citizens belongs to anybody who reaches the age of eighteen years in the month of May of the election year and is registered as a Citizen in one of the Member States of the Federation, regardless of the number of years of that registration. Citizens of a Member State of the Federation who 10 are legally resident in another State of the Federation can vote for the House of Citizens in their State of residence. 7. The House of the Citizens chooses its Presidency, consisting of three delegates of the House, with the right to vote. The House appoints its own personnel. No secret vote is permitted in the House of Citizens; every vote must be recorded. Section 3 – The House of the States 1. The House of the States is composed of nine delegates per State. Each delegate has one vote. They are appointed for a term of five years by their State’s parliament among its members. They can be re-appointed once in succession. The first appointment of the full House of the States takes place within the first five months of the year 20XX. They enter their office at the latest on June 1st of the year of their appointment. 2. Eligible to the House of the States are those who reached the age of twenty-five years in the year of taking office and who have been registered for a period of at least seven years as a Citizen of a Member State of the Federation. On behalf of the States of the Federation, the House of the States establishes laws on requirements of competence and suitability for the office of delegate. 3. The House of the States shall organize once a year a multi-day meeting with panels of delegates of the parliaments of the Member States to gather information on how to improve the realization of the Common European Interests as envisaged in Article III. The law shall determine how these panels are composed and how they shall operate, considering that delegates from each parliament of the Member State will participate in these panels and that the outcome of these meetings will improve and strengthen the Common European Interests. 4. The delegates of the House of the States have an individual and non-binding mandate that is exercised in the general interest of the Federation. This mandate is incompatible with any other public function, including an incompatible membership of the parliament that appointed them as delegates of the House of the States and any kind of multiple mandates, nor with a position or such a relationship with European or global enterprises or other organizations as to influence the Federation's decision making. 5. The House of the States chooses its Presidency, consisting of three delegates of the House, with the right to vote. The House appoints its own personnel. 6. The House of the States holds the exclusive power to preside over impeachments. In case the President of the Federation, the Vice Presidents of the Federation or a delegate of Congress is impeached the House of the States will be chaired by the Chief Justice of the Federal Supreme Court of Justice. In case a delegate of that Court is impeached the Chairperson of the House of the States will chair the House of the States. No one shall be convicted without a two third majority vote of the delegates present. 7. Conviction in cases of impeachment shall not extend further than the removal from office and disqualification from holding any office of honor, trust, or salaried office within the Federation. The convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. 8. No secret vote is permitted in the House of States; every vote must be recorded. Section 4 – The gathering of both Houses 1. The European Congress is the gathering of the House of the Citizens and the House of the States in joint session and is presided over by the Chair of the House of the Citizens. 11 2. The time, place, and manner of electing the delegates of the House of the Citizens and of appointing the delegates of the House of the States are determined by the European Congress. 3. The European Congress convenes at least once per year. This meeting will begin on the third day of January, unless Congress determines a different day by law. 4. The European Congress settles Rules of Proceedings for its manner of operating. Section 5 – Rules of Proceedings of both Houses 1. Each House settles Rules of Proceedings, by majority of its delegates, as to their specific fields of competence. They regulate what subjects require the presence of a quorum, which quorums are applied, the majority requested save is otherwise provided in the constitution, how the presence of delegates can be enforced, what sanctions can be imposed in case of systematic absence, what powers the Chairperson has in order to restore order and how the proceedings of meetings and counted votes are recorded. 2. The Rules of Proceedings regulate punishment of delegates of the House in the case of disorderly behavior, including the power of the House to expel the delegate permanently by a two third majority. 3. During meetings of the European Congress no House may adjourn for more than three days without the consent of the other House, nor may it move its seat. Section 6 – Compensation and immunity of delegates of Congress 1. The delegates of both Houses receive a salary for their work, determined by law, to be paid by the Treasury of the Federation. 2. The rules on the immunities of both Houses are determined at the level of the Federation. The delegates of both Houses are in all cases, except treason, felony, and disturbance of the public order, exempted from arrest during their attendance at sessions of their respective House and in going to and returning from that House. For any speech or debate in either House they are not to be questioned in any other location. Section 7 – The Federal Supreme Court of Justice, the Federal Central Bank, and the Federal Court of Auditors The European Congress establishes by law The Federal Supreme Court of Justice, the Federal Central Bank, the Federal Court of Auditors, the Federal Ombudsman Office, and regulates their powers. Article III – The Powers and tasks of the Legislative Branch Section 1 – The legislative procedure 1. Both Houses have the power to initiate laws and to make all necessary regulations with respect to the territory or other possessions belonging to the Federation. They may appoint bicameral commissions with the task to prepare joint proposal of laws or to solve conflicts between the Houses. 2. The laws of both Houses must adhere to principles of inclusiveness, deliberative decision-making, representativeness in the sense of respecting and protecting minority positions within majority decisions, avoiding oligarchic decision-making processes and preserving the value of diversity. 12 3. The House of the Citizens has the power to initiate legislation affecting the federal budget of the Federation. The House of the States has the power - as is the case with other legislative proposals by the House of the Citizens - to propose amendments in order to adjust legislation affecting the federal budget. 4. Each draft law is sent to the other House. If the other House approves the draft, it becomes law. In the event that the other House does not approve the draft law, a bicameral commission is formed - or an already existing bicameral commission is appointed - to mediate a solution. If this conciliation produces an agreement or a proposal of law, this is subject to a majority vote of both Houses. 5. Any order or resolution, other than a draft law, requiring the consent of both Houses – except for decisions with respect to adjournment – are presented to the Praesidium and need its approval before they will gain legal effect. If the Praesidium disapproves, this matter will nevertheless have legal effect if two third of both Houses approve. Section 2 – The Common European Interests 1. The European Congress is responsible for taking care of the following Common European Interests: (a) The viability of the Federation, by regulating policies against existential threats to the safety of the Federation, its States and Territories and its Citizens, be they natural, technological, economic or of another nature or concerning the societal peace. (b) The financial stability of the Federation, by regulating policies to secure and safeguard the financial system of the Federation. (c) The internal and external security of the Federation, by regulating policies on defence, intelligence and policing of the Federation. (d) The economy of the Federation, by regulating policies on the prosperity and welfare of the Federation. (e) The science and education of the Federation, by regulating policies on the level of wisdom and knowledge of the Federation. (f) The social and cultural ties of the Federation, by regulating policies on preserving established social and cultural foundations of Europe. (g) The immigration, including refugees, to and the emigration out of the Federation, by regulating immigration policies on access, safety, housing, work and social security, and emigration policies on leaving the Federation. (h) The foreign affairs of the Federation, by regulating policies on promoting the values and norms of the Federation outside the Federation itself. 2. Appendix III A, being an integral part of this Constitution but not subject to the constitutional amendment procedure, regulates the way in which the Member States decide which powers to entrust to the federal body. It also regulates the contribution of the Citizens on that process. Section 3 – Constraints on the Member States 1. No State will introduce state-level policies or actions that can threaten the safety of its own Citizens, or of Citizens of other Member States. 2. No taxes, imposts or excises will be levied on transnational services and goods between the States of the Federation. 3. No preference will be given through any regulation to commerce or to tax in the seaports, airports or spaceports of the States of the Federation; nor will vessels or 13 4. 5. 6. 7. aircraft bound to or from one State be obliged to enter, clear, or pay duties in another State. No State is allowed to pass a retroactive law or restore capital punishment. Nor pass a law impairing contractual obligations or judicial verdicts of whatever court. No State will issue its own currency. No State will, without the consent of the European Congress, impose any tax, impost or excise on the import or export of services and goods, except for what may be necessary for executing inspections of import and export. The net yield of all taxes, imposts, or excises, imposed by any State on import and export, will be for the use of the Treasury of the Federation; all related regulations will be subject to the revision and control by the European Congress. No State will have military capabilities under its control, enter any security agreement or covenant with another State of the Federation or with a foreign State, and can only employ military capabilities based on self-defense against external violence when an imminent threat requires this, and only for the duration that the Federation cannot fulfill this obligation. The military capabilities that are used in the above-mentioned situation are capabilities that are stationed on the State’s territory as part of the federal defence force. Section 4 – Constraints on the Federation 1. No money shall be drawn from the Treasury but for use as determined by federal law; a statement on the finances of the Federation will be published yearly. 2. No title of nobility will be granted by the Federation. No person who under the Federation holds a public or a trust office accepts without the consent of the European Congress any present, emolument, office, or title of any kind whatsoever from any King, Prince or foreign State. 3. No personnel, whether paid or unpaid, of the government, government contractors or entities receiving direct or indirect funding from the government shall set foot on foreign soil for the purpose of hostilities or actions in preparation for hostilities, except as permitted by a declaration of war by the European Congress. 4. The income and spending capacity of political parties and of any candidate standing for elections is regulated by the European Congress with a law on the financing of elections. 5. No person or entity that has directly or indirectly received funds, favors, or contracts from the government during the last five years may contribute to an election campaign under the sanctions described in clause 6. In addition, any entity seeking to circumvent this limitation shall be fined a sum equal to five years’ turnover, payable on conviction. 6. Any contribution, whether direct or indirect, in cash, goods, services or labour, whether paid or unpaid, made to a person seeking elected office must be made public within forty-eight hours of receipt. The contribution from each entity must bear the name of the person or persons responsible for managing the entity. An entity seeking to circumvent this limitation shall be fined a sum equal to five years’ turnover, payable on conviction. 7. No government employee may accept a position in a private entity that has accepted government funding, favors or contracts for a period of ten years after leaving the government office during the last five years. 8. Every institution and agency of government, and every entity or person that has directly or indirectly received government funding, favors or contracts, will be subject to an 14 independent audit every four years, and the results of these forensic audits will be made public on the date of their issue. Any entity attempting to circumvent or avoid this requirement will be fined a sum equal to five years’ turnover, payable in the event of a conviction. Any person seeking to circumvent or avoid this requirement must serve a minimum term of imprisonment of five years. Article IV - The Executive Branch Section 1 - The Federal Government 1. The executive branch is formed by the Federal Government and consists of a President, two Vice Presidents and a Cabinet of Ministers. The President is Head of State and Head of Government, who, together with a first and a second Vice President, forms a Praesidium. 2. The President and the two Vice Presidents are simultaneously elected by Citizens of the Federation on the basis of universal suffrage in which the entire territory of the Federation forms one constituency. 3. The members of the Cabinet of Ministers are appointed by the President in consensus with the Vice Presidents. The members represent the diversity of the Federation. Each federal Minister heads a Ministry. 4. The members of the Praesidium and the Federal Ministers are of high and cultural integrity. 5. The decisions of the Federal Government are taken collectively by consensus. In the absence of consensus, the Ministers vote by simple majority. In the event of an equality of votes, the President shall decide after consulting with both Vice Presidents. 6. The Praesidium shall ensure that the Federal Government and its institutions implement policies that are in the interest of the Federation as a whole and shall avoid extreme political deviations and the influence of unelected power groups and lobbies that may jeopardize democracy or promote oligarchic or partisan decision-making. 7. The Praesidium shall safeguard the integrity of the civil service, by preventing the application of any form of spoils system and party-politically motivated dismissals of personnel of administrative and governmental agencies and bodies. Section 2 – The election of the President and the Vice Presidents 1. The President and the Vice Presidents of the Federation are elected for a term of four years. Their election will be held on the third Friday in the month of October; the first election is to take place in the year 20XX. If one of the candidates for the presidency or vice presidency achieves an absolute majority, she/he is elected President or Vice President. If none of the candidates obtain a majority, a second election between the two candidates who obtained the most votes shall take place within a month. The candidate who receives the most votes in this second round becomes President or Vice President. 2. To bridge the period between ratification of the Constitution of the Federation and the first election of its President and Vice Presidents the European Congress appoints from its midst an Acting President and two Acting Vice Presidents. They are not electable as President, or as Vice Presidents, in the first Presidential election of the Federation. 15 3. Electable as President or Vice President is any person who at the time of her/his candidacy, to be set by federal law, has reached the age of thirty-five years, and has been registered as a Citizen of the Federation for at least twelve years. 4. The President and the Vice Presidents receive a salary for these positions, set by the European Congress. The salary shall not be increased nor decreased during the term of her/his presidency/vice presidency, and they do not receive any other compensation of any kind from the Federation, nor from any individual State of the Federation, nor from any other public institution within or outside of the Federation, nor from any private institution or person. 5. Before the President and the Vice Presidents enter office, they will pledge, in front of the Chief Justice of the Federal Supreme Court of Justice, in the month of January in which their terms begins, the following oath or affirmation: “I, [name], solemnly swear/promise that in exercising the powers of the Presidency/(Vice Presidency of the Federation I will fulfill these duties to the best of my abilities: to observe and protect the Constitution of the Federation and the Rule of Law; to protect the sovereignty, security and integrity of the Federation; and to faithfully serve the people of the Federation.” Section 3 – The vacancy and end of the term of the Presidency and Vice- Presidencies 1. The President and the Vice Presidents will be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors. In case of removal of the President from office, her/his death or resignation, the First Vice President becomes President while the Second Vice President remains the only Vice President until the next elections. 2. If the office of one of the Vice Presidents is vacated, the other Vice President remains or becomes first Vice President. The President will then nominate a Second Vice President who will take office upon confirmation by a majority in both Houses of the European Congress. 3. Whenever the President declares, in writing, to both Houses of the European Congress her/his inability to execute the duties of office, the First Vice President becomes President while the Second Vice President remains the only Vice President until the next election. 4. The Vice Presidents, together with a majority of the Ministers of the Federal Government, can in writing to the Houses of the European Congress declare the President unfit to serve, after which the First Vice President becomes President while the Second Vice President remains the only Vice President until the next election. 5. If the President has declared unfit to serve, she/he can, within five days and in writing, protest and state before the Houses of the European Congress that she/he is fit for office. If so, the Vice Presidents can, together with a majority of the Ministers of the Federal Government, within five days, reiterate their assessment that the President is unfit for office. If the Houses of the European Congress, within twenty-one days after receipt of the latter written declaration, determines by two-third majority in both Houses that the President is unable to serve, the First Vice President will become President. Otherwise, the President will resume the powers and duties of the office. 6. The terms of the President and the Vice Presidents end at Noon on the 20th day of January, four years after they have entered office. At the same time the terms of their successors will begin. 16 7. If, at the time fixed for the beginning of the term of the President, the President Elect has died, the First Vice President Elect shall become President, who then appoints a Deputy Vice President. If a President Elect is unable to pledge the oath or affirmation for beginning his office, or if the President Elect has failed to qualify, the First Vice President Elect shall act as President until a President qualifies; and the Congress may by law provide for the case wherein neither a President Elect nor a Vice President Elect qualifies, declaring who shall then act as President or Vice President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President qualifies. Section 4 – Independent oversight of the executive branch: the Ombudsman Office 1. The European Congress establishes by law the Institute of the Federal Ombudsman Office, charged with monitoring the functioning of the executive branch in relation to the well-being of Citizens. 2. The House of the Citizens will elect candidates from the civil society – based on professional achievements and personal qualities – to serve as Ombudsman. The length of service in the Ombudsman Office shall be that of the legislative term. 3. The Ombudsman Office will operate independently of any other institution. 4. The law defines the powers of the Ombudsman Office, including the power to advise the Praesidium to adjust the policies of the executive branch and to make good the damage caused by the executive branch to the well-being of Citizens. A rejection of the Ombudsman's advice by the Praesidium gives the Ombudsman Office the power to refer the matter to Oversight Committees of both Houses of the European Congress for a decision to be taken by the Houses. A rejection of the Ombudsman’s advice by a House requires a two-third majority. 5. The Ombudsman Office is authorised to monitor the implementation by the executive branch of the reparation of damage caused to the well-being of Citizens and to assess its quality. If it is insufficient, the Ombudsman Office may bring the matter to the attention of the European Congress and/or the Federal Supreme Court of Justice once again. Article V – The powers and tasks of the Executive Branch Section 1 – The President’s and Praesidium’s powers 1. The Praesidium ensures that the policies of the Executive Branch adhere to principles of inclusiveness, deliberative decision-making, and representativeness in the sense of respecting and protecting minority positions within majority decisions, with resolute wisdom to avoid oligarchic decision-making processes. 2. The President is Commander-in-Chief of the armed forces and security agencies of the Federation. A Federal emergency law determines the President’s powers in matters of emergency. 3. The Praesidium appoints Ministers, Ambassadors, other Envoys, Consuls, and all public officials of the Executive Branch of the Federation whose appointment is not regulated otherwise in this Constitution and whose offices are based on a law. It removes from office all public officials of the Federation after their conviction of treason, bribery or other high crimes and misdemeanors. 17 4. The Praesidium may seek the opinion, in writing, of the principal officer in each of the executive ministries on any subject relating to the duties of their respective offices. 5. The Praesidium has the power to grant amnesty and grace for offenses against the Federation, except in cases of impeachment. 6. The Praesidium has the power to make treaties, by and with the advice and consent of the House of the States, provided that two third of delegates of the House of the States concur. 7. Whenever a World Federation invites the Federation to become a member, the Praesidium will organize a decisive referendum on the accession of the Federation to that World Federation. 8. The Praesidium organizes once a year a consultative referendum among all Citizen Electors of the Federation in order to obtain the opinion of the European people concerning the execution of the federal policy domains. Section 2 – The President’s and Praesidium’s tasks 1. In a joint session of the European Congress, the President professes once a year the State of the Federation, prepared by the Praesidium, and recommends measures that she/he deems necessary. 2. The President may, in extraordinary circumstances convene both Houses of the European Congress or either of them. 3. The Praesidium receives Ambassadors and other foreign Envoys. 4. The Praesidium shall ensure the proper functioning of the Federation as a democratic federation, based on the Rule of Law. The Praesidium sees to it that the laws of the Union are faithfully executed. 5. The Praesidium commissions the responsibilities of all government officials of Federation. Article VI – The Judicial Branch Section 1 – The Courts and the Judges 1. The judicial power of the Federation is vested in the Federal Supreme Court of Justice. The European Congress may decide to install lower federal courts – Constitutional Courts - in Member States of the Federation. The judges of the Federal Supreme Court of Justice as well as those of the Constitutional Courts, remain in their office as long as their conduct is proper, and until they reach the age of 75. For their services they receive a salary which during their time in office cannot be reduced. 2. Judges, both of the Federal Supreme Court of Justice and of Constitutional Courts, are appointed by a Praesidium of Judges. A law by the European Congress shall lay down criteria of the judges’ competence and suitability, and proper representation from all Member States. In no case may the Legislative or Executive Branches influence the appointment of federal judges. A law by the European Congress shall lay down criteria for judges to recuse themselves from cases where impartiality might reasonably be questioned. 3. Justice is administered in the name of the Federation. 4. No offence is punishable unless by virtue of a preceding statutory provision. 18 5. Any interference in the investigation and prosecution of cases before the courts, either Federal courts or courts of the Member States, shall be prohibited. Section 2 – Powers of the Federal Judicial Branch 1. The federal judicial branch has the power: (a) to test laws and executive measures - either from the Federal Government or from Member States - against the federal Constitution; (b) to invalidate requests and attempts to amend the Constitution which weaken the values of the Preamble and the objectives of Article I, and their safeguards, which restrict the freedoms and rights of Citizens, or which corrupt the statutory coherence of this Constitution, especially as regards the separation of the three powers of the state; (c) to judge in all conflicts arising under this Constitution with respect to all laws of the Federation; (d) to test treaties made, or that shall be made under the authority of the Federation, against the federal Constitution; (e) to judge all cases of a maritime, space and outer space nature; (f) to judge all cases in which the Federation is a party; (g) to judge controversies between two or more Member States, between a Member State and Citizens of another Member State, between Citizens of several Member States, between Citizens of the same Member State in matters of property in another Member State and between a Member State or Citizens of that State and foreign States or Citizens thereof. 2. The Federal Supreme Court of Justice has the exclusive power in all cases in which Member States, Ministers, Ambassadors and Consuls of the Federation are party. In all other cases, as mentioned in Clause 1, the Federal Supreme Court of Justice is the court of appeal, unless the European Congress decides otherwise by law. 3. Except in cases of impeachment, the trial of crimes, as determined by law, will be by jury. These trials will be held in the Member State where the crime has been committed. If they have not been committed within any Member State, the trial will be held at such place or places as determined by law through the European Congress. Section 3 – Powers of the Federal Supreme Court of Justice 1. The Federal Supreme Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Constitution; (b) the validity and interpretation of acts of the institutions. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Federal Supreme Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under Member State law, that court or tribunal shall bring the matter before the Federal Supreme Court of Justice. 19 The Federal Supreme Court of Justice shall refer a preliminary question to a Constitutional Court if there are doubts concerning the interpretation of the national identity of a Member State. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Federal Supreme Court of Justice shall act with the minimum of delay. 2. The Federal Supreme Court of Justice shall review the legality of legislative acts, of acts of the institutions, and of acts of the institutions, offices or agencies intended to produce legal effects vis-à-vis third parties. It shall for this purpose have jurisdiction in actions brought by a Member State, the powers on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Constitution or of any rule of law relating to their application, or misuse of powers. 3. Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. Section 4 – High Treason and Death Penalty 1. High treason against the Federation shall only consist of levying war against the Federation, or of adhering to its enemies by giving them aid and comfort. No person shall be convicted of high treason without the testimony of at least two witnesses to the crime, or on confession in open court. 2. The European Congress has the power to declare the punishment for high treason, but in no way a verdict of high treason shall lead to attainder or confiscation for the offspring of the convicted person. 3. The Federation does not implement and repudiates death penalty. Article VII – The Citizens, the States, and the Federation Section 1- The Citizens 1. Citizens of the Federation shall enjoy the rights and be subject to the duties provided for in the Constitution. They shall have, inter alia: (a) the right to move and reside freely within the territories of the Member States; (b) the right to vote and to stand as candidates in elections to the House of the Citizens; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the House of the Citizens, to apply to the Federal European Ombudsman, to address the institutions and the advisory bodies of the Federation in any of the Federation languages and to obtain a reply in the same language. These rights shall be exercised in accordance with the conditions and limits defined by the Constitution and by the measures adopted thereunder. 2. The Citizens of each State of the Federation also possess the Citizenship of the Union with all the associated political and other rights. They receive a single passport, issued by 20 3. 4. 5. 6. 7. 8. one's own Member State, stating Citizenship of the Federation. The Citizens of a Member State are also entitled to all rights and favors of the Citizens of any other State of the Federation. According to Article II, Section 1, Clause 3 all Citizens of the Federation over the age of eighteen, unless they lack capacity due to mental illness or mental incapacity, may participate in elections to the House of the Citizens. They may launch or support popular initiatives on federal affairs. They may be elected delegates of the House of the Citizens, provided they meet the requirements of Article III on competence and suitability. (a) The way in which scientific institutes, political parties, associations, societal movements, and other organizations may contribute to the forming of public opinion is regulated by a law of the European Congress for the verification and control of possible conflicts of interest that may exist between them and the media. (b) Access to transparent and objective information will be ensured through the creation of Citizens’ Panels by a law of the European Congress. These Citizen’s Panels should serve as a space for debate and the creation of a well-balanced public opinion, working as a link between different sources of information and citizens. (c) Transparency shall be ensured by a law of the European Congress with respect to the ownership structures of the media, as well as their relationship with parties, companies or positions that may influence or shape public opinion. These media will be encouraged to participate in the Citizens’ Panels by meeting certain requirements. Citizens of the Federation have the right to present a legislative proposal to the European Congress, in the form of a draft law. If a minimum of 1% of the Citizens of the Federation support this draft law, this will be laid down as a People’s Initiative at the Registry of the House of Citizens. A People’s initiative can have the form of an amendment to the Federal Constitution. Any People’s Initiative shall meet the requirements of consistency of form and content and shall not infringe mandatory provisions of international law. If these requirements are not met, the Federal Court of Justice of the Federation will declare it invalid, in whole or in part. Within half a year of its registration, both Houses of Congress make a final decision regarding the People’s Initiative. In case the presented draft law is accepted, by a simple majority by both Houses, it will become federal law. The European Congress may submit a counterproposal to the People’s Initiative. In this case, or if the People’s initiative is approved by only one of the Houses, the Praesidium will organize a referendum. The House that did not approve the People’s initiative may submit a counterproposal. The Citizens vote on the initiative and the possible counterproposal at the same time. The Citizens may vote in favour of both proposals. They may indicate the proposal that they prefer if both are accepted. The proposal that comes into force is that which achieves the higher sum of the percentage of votes of the Citizens. In case of a People’s Initiative in the form of an amendment to the Constitution, the ratification must follow the same procedure of Article VIII. The following must be put to a referendum: (a) a decision on ratification of an international treaty and on accession of the Federation to collective security organizations, supranational communities or international organizations; (b) federal emergency laws which are not based on a provision of the Constitution and whose term of validity exceeds one year; such federal laws must be put to a vote within a year of being approved by the European Congress. 21 9. The following may be put to a referendum: (a) federal laws; (b) federal executive measures required by the Constitution or a law. 10. All referendums must, within three months, be preceded by Citizens' Panels organized by the House of the Citizens with the aim of preparing European Citizens for the vote by providing information on the proposals. On the basis of the outcome of the Citizens' Panels, the European Congress may submit a counterproposal. An act of the European Congress shall lay down the methods for voting on the proposal of the Citizens and on the proposal of the European Congress. Section 2 – The States 1. Full faith and credit will be given in each Member State to the public acts, records, and judicial proceedings of all other States. The European Congress may prescribe by general law the manner in which such acts, records and proceedings will be proved, and the effects thereof. 2. The Member States of the Federation have the exclusive power to regulate matters of national Citizenship. A State’s Citizenship is valid in any other State of the Federation. 3. States may join the Federation with the consent of a simple majority of the Citizens of the Federation and of a two-third majority of each House of the European Congress, in this order. The European Congress shall lay down by law the requirements to be met by States acceding to the Federation. 4. Member States may leave the Federation by the same route as indicated in Clause 3. By law of the European Congress, the financial obligations of such Member States are determined. 5. All debts entered, and engagements contracted by States acceding to the Federation at the time of its entry into force will remain valid within the Federation. States acceding to the Federation after the Federation having come into force retain their debts and are bound to the laws of the Federation as of the moment of their accession. 6. Any change in the number of Member States of the Federation will be subjected to the consent of a majority of the Citizens of the concerned Member States, a two-third majority of the Legislative Branches of all Member States and a two-third majority of each House of the European Congress, in that order. 7. A person convicted in any State of the Federation for high treason, felony, or other crimes, fleeing from justice and found in a different member State, will at the request of the executive authority of the State from which he/she fled, be surrendered to the State with jurisdiction relating to that crime. 8. Slavery or any form of compulsory servitude, except in case of a temporary punishment for a crime for which the said person has been lawfully convicted, will be ruled out in the Federation and in any territory under federal jurisdiction. Section 3 – The Federation 1. The Federation shall ensure that democracy, rule of law, justice, solidarity, diversity of national and regional cultures, and respect for minorities are preserved and guaranteed in every Member State. It will protect them against invasions and attacks, at the request of the Legislative Branch, or that of the Executive Branch in case the Legislative Branch cannot convene, against unlawful violence within the Federation. 22 2. The Federation will not interfere with the internal organization of the States of the Federation, but still demands that those states as democratic states will be governed by the rule of law. Article VIII – Amending the Constitution The European Congress is authorized to propose amendments to this Constitution, each time a two third majority in both Houses consider this necessary. If the legislative branches of two-third of the Member States, consider it necessary the European Congress will hold a Convention with the assignment of proposing amendments to the Constitution. In both cases the amendments will be a valid part of the Constitution following ratification by three quarters of the Citizens of the Federation, three quarters of the legislative branches of the Member States and three quarters of each House of the European Congress, in this order. Article IX – Federal Loyalty 1. This Constitution and the laws of the Federation that will be made in connection with the Constitution, and all treaties, made or to be made under the authority of the Federation, are the Supreme Laws of the Federation. The judges in every Member State will be bound hereby, notwithstanding any other regulation or law of any Member State. 2. The delegates of the European Congress, the members of the legislative branches of the Member States and all executive and judicial officers, both of the Federation and of the Member States, will be bound by an oath or affirmation to support this Constitution. No religious test shall ever be required as a qualification for any office or public trust under the Federation. Article X – Ratification of the Constitution 1. The Federal Constitution for the Federation is submitted for ratification to the Citizens of Europe. Those who are eligible to vote may do so. The vote is secret and not susceptible to fraud. 2. If a simple majority of the electorate of all participating states vote to ratify the Constitution, followed by ratification by their national parliaments, it will enter into force and the Federation will be established, subject to relevant provisions in the national Constitutions of the acceding States. 3. If the electorate of nine countries or regions ratify the constitution by a simple majority, the Federation will be established in accordance with Article 20 of the Treaty on the European Union and joins as an enhanced form of cooperation the European Union with the aim, among other things, of encouraging the other Member States of the European Union to join the Federation. *** 23 2. MEMORANDUM OF EXPLANATION OF THE CONSTITUTION General Considerations Why this federal Constitution for Europe? In 1787, the Philadelphia Convention of fifty-five people made an unprecedented breakthrough in constitutional law. Based on centuries-old ideas of political philosophers about democracy and sovereignty they drafted the world's first federal constitution with seven-articles. It successfully united the thirteen former British colonies that - as small independent states - had come into conflict with each other under a confederal treaty. The federal concept proved to be the recipe for the growth to the current fifty US-member states. In the course of the 19th and 20th centuries, twenty-six other federal states followed. Together they now house just over 42% of the world's population. But not that of Europe, although there are some federations within Europe: Germany, Belgium, Austria, and Switzerland. Based on a Constitution. The fact that the existing 27 federations have a constitutional foundation - and not a treaty basis - is the reason for designing this federal Constitution for Europe: a federation should be based on a democratic constitution of, by and for the people. No treaty is appropriate in this context. On the contrary. However, attempts so far to establish a federal Europe on the basis of a constitution have failed for over two hundred years. The main cause was getting bogged down in attempts to cooperate intergovernmentally, based on treaties. The fact that this can never lead to a federal Europe is explained in this Explanatory Memorandum, with reference to underlying literature. Attempts to federalise Europe: from 1787 to 1945 and from 1946 to the present day 1 The Peace of Westphalia in 1648 gave birth to nation states. Thus, the European state system of the time evolved from nobility entities (counties and duchies), which were frequently in conflict with each other, to a system of states with borders and citizens. Westphalia's mission was: no more conflicts and multi-years wars. The reality was: continuous wars, up to and including WWII. Nobility-anarchy was thus followed by nationstate- anarchy. Anarchy in the sense of the absence of a system that connects 1 For a comprehensive and detailed history of many of the approaches to the federalisation of Europe, see Professor Dr. Andrea Bosco, Director of the Lothian Foundation. He has been Jean Monnet ‘ad personam’ Chairholder on the History and Theory of European Integration at the University of Florence, and South Bank University, London. He has published extensively on the history and theory of federalism and European unification, and on British Imperial and foreign policy in the Twentieth century, with a number of books to his credit, including: The Federal Idea; A Constitution for Europe; Chatham House and British Foreign Policy 19191945; Lord Lothian and the Creation of the Atlantic System; Towards a Substantial European Union: The Euro and the Struggle for the Creation of a New Global Currency; June 1940. Great Britain and the First Attempt to Create a European Union; The Round Table Movement and the Fall of the ‘Second’ British Empire; and Democracy, Federalism, the European Revolution and Global Governance, among others. 24 administrative entities in such a way that they recognise their common interests and make provision for them together. And thus grant each other peace, tranquility, and prosperity. The success of federal America (despite one internal war from 1861 to 1865) continuously elicited societal initiatives in the 19th century to realise the same in Europe. Only Switzerland, around 1850, put an end to its years of internal bloody wars under a confederal treaty by establishing a federal state. Elsewhere in Europe, violent conflicts, especially between France and Germany, continued. The League of Nations, founded after WWI and intended to end wars on the European continent, failed. Its treaty-based approach was too weak to compensate for the errors in the Treaty of Versailles of 1919. Thus, that treaty became the prelude to WWII. It was Philip Kerr (Lord Lothian) who, as former private secretary to Prime Minister David Lloyd George between 1916 and 1921, was involved in the draft of that Treaty of Versailles. He soon realised that the harsh demands made on Germany could lead to new hostilities and decided to act. Together with like-minded federalists, he founded the Round Table Movement and the Federal Union to advocate on a hitherto unprecedented societal scale the establishment of a federal Europe on the basis of a federal constitution. A European federation, even linked to that of the United States of America. But this movement, too, ran aground in political unwillingness to federalise Europe. Kerr resigned in 1939 to become British ambassador to Washington. WWII broke out soon after. Meanwhile, there was also action on the European continent. The French and German Foreign Ministers, Aristide Briand and Gustav Stresemann, stimulated by Richard Coudenhove-Kalergi, tried to establish a common economic policy during the Interwar period. Like Philip Kerr's motives, their aim was to prevent another world war. They called their initiative 'federalisation'. But treaty-based cooperation is not federalisation. Their intergovernmental endeavors also collapsed in the course of the 1930s. However, the fire under the usefulness and necessity of making Europe a federal state continued to burn. As an exile of Benito Mussolini, Altiero Spinelli drafted the famous Ventotene Manifesto on the island of Ventotene between 1941 and 1944. It was an appeal to finally put an end to half-hearted treaty attempts to establish a federal Europe after the end of WWII. In order to realise this process, Spinelli opted in principle for the way of thinking and working of the Philadelphia Convention of 1787: the making of a Constitution of, by and for the people of Europe. As a result of his Manifesto, between 1945 and 1950 Europe was bursting with plans and conferences on federal issues. But already in 1946, Spinelli's proposal to base a federal Europe on a federal Constitution was abandoned and all meetings focused on federalisation by means of a treaty. This vision was formalized in the Schuman Declaration of 1950. Schuman - French Foreign Minister - summarized the political thinking of the time by calling for Europe to become a federation but placed its construction in the hands of government leaders with the task of achieving this through a treaty. Government leaders prefer to work with treaties. Then they have little or nothing to do with parliaments to whom they are accountable. 25 Treaty cooperation is an excellent instrument when a very limited number of states wish to pursue one common interest. For example, the treaty by which the Netherlands and Belgium want to ensure the navigability of the Western Scheldt, so that Antwerp can also be reached by large ships. But trying to promote a number of interests with a number of states, and then steering those states with binding directives – without a democratic constitutional foundation - is a serious system error that ultimately causes the operating system to implode. However, this knowledge did not correspond to the political reality of the time. Between 1945 and 1950 the emphasis was not on law but on economics. This already started in the Interbellum, the period between WWI and WWII. Aristide Briand and Gustav Stresemann (Ministers of Foreign Affairs of France and Germany) then tried to activate financialeconomic cooperation between the two countries by means of a treaty. This failed. The numerous federalisation discussions in Europe between 1945 and 1950 had economics as their primary focus, with treaty-cooperation as the instrument for achieving a new monetary order2. This culminated in the aforementioned Schuman Declaration, which underpinned the then self-evident importance of a federal Europe with the alleged self-evident need to implement it through treaties. After seventy years, it is clear that the choice for this treatybased, intergovernmental European integration has become the source of what may now be called the treaty-based anarchy. We see this with Brexit, for example, but also in the way countries like Hungary and Poland are challenging their treaty obligations and the supremacy of the European Court of Justice. Thus, was born after WWII what is now the European Union. A new European state system, organized by treaties, just like the United Nations. As a result, Spinelli never succeeded in realizing his idea of a federal Europe on the basis of a federal Constitution in the manner of the Philadelphia Convention. He did, however, become a European Commissioner from 1970 to 1976 and a Member of the European Parliament from 1976 to 1986. After the advent of the treaty-based European Coal and Steel Community in 1951, being the first product of the Schuman Declaration, new treaties followed until the advent of the Lisbon Treaty in 2009. In the meantime, it has become clear that the nobility- anarchy before 1648, followed by the nationstate-anarchy from1648 until 1945, has since 1951 followed by treaty-anarchy: Member States of the European Union ignore the obligations of the treaties when it suits them. Growing internal conflicts - coupled with a weak geopolitical position have led the European Union to a serious identity crisis: it consumes more energy than it stores3; the final stage before the collapse of any living system. See Jorrit Steehouder, ‘Constructing Europe. Blueprints for a New Economic Order 1919-1950’, PhD Thesis at the University of Utrecht, 14 January 2022. 3 This is covered by the concept of entropy, an important concept in thermodynamics. A system that has no internal energy left and fails to attract new energy from outside collapses. A human being who does not eat and drink but simply lives on dies after a few weeks. The same applies to organisations. If they are not in an open relation with their environment and continually recharge their system with new, additional energy, they enter an identity crisis and perish. 2 26 The Ukraine war – begun in February 2022 - made this painfully clear. It announced a predicted4 comprehensive political, military, and economic systemic crisis. Not only in Europe. Two hundred years of political failure to federalise Europe was the cause5 of this new war on the European continent. The Federal Alliance of European Federalists took its responsibility Piepers' analysis shows that such a systemic crisis is the basis for an evolution towards a new European system of states. After a system of kingdoms, duchies, counties, and cities fighting each other (until 1648), followed by a system of nation states fighting each other (until 1945), then followed by the EU system of conflictual – antagonistic - cooperation based on treaties (until today), we are now on the eve of a European state system of a federal nature, based on a democratic Constitution. While in 2021-2022, the European Union made another attempt to settle its identity crisis by means of a Conference on the Future of the Union - again motivated by the desire to adapt the treaty-based EU system - the Federal Alliance of European Federalists (www.faef.eu) has taken on the responsibility to do what has been neglected for over two hundred years: to draft a bottom-up democratic federal constitution for a federal Europe. There have certainly been previous attempts of this kind, but FAEF's specific - primarily scientifically driven approach has never been done before. FAEF has chosen as a matter of principle to base the composition of the federal Constitution as much as possible on aspects of political philosophy, constitutional law, systems and organization theory, psychoanalysis, sociology, cybernetics, thermodynamics and argumentation theory as these are recognizable - partly avant la lettre - in the working method of the Philadelphia Convention of 1787. Their Constitution - despite its later discovered shortcomings - turned out to be a brilliant breakthrough in the history of lawmaking: a federal constitution appears to be the best guarantee for peace, tranquility, and prosperity. Provided it is built according to standards. Where standards are used lightly or ignored, federations fail. Europe, Africa, and Asia have examples6 of this that we will not go into here. The systemic crisis in which Europe finds itself - of which the identity crisis of the European Union is only a part - presents Europe with a sense of urgency. The danger of an 4 That prediction was made by Dr. Ingo Piepers (former Commander of the Dutch part of the United Nations Rapid Reaction Force to end the war in Bosnia (1992-1995) in his book ‘De Onvermijdelijkheid van een nieuwe Wereldoorlog’ (The inevitability of a new world war), Prometheus Publishers Amsterdam 2020. This book is a continuation of Piepers' PhD thesis 'Dynamics and development of the international system: a complexity perspective' (2006), 'Warning. Patterns in War Dynamics Reveal Disturbing Developments' (2016) and from his study 'On the Thermodynamics of War and Social Evolution' (2019). For a detailed analysis of the same development within Europe’s post war intergovernmental system, see Chapter 2 of FAEF's ‘Constitutional and Institutional Toolkit for Establishing the Federal United States of Europe’: https://www.faef.eu/wpcontent/uploads/Constitutional-Toolkit.pdf. 5 See Leo Klinkers: ‘What caused EU’s geopolitical irrelevance in the Ukraine drama?’ https://www.europe-today.eu/2022/02/27/what-caused-eus-geopolitical-irrelevance-in-the-ukrainian-drama/. 6 See E. Kavalski & M. Zolkos (eds.), Defunct federalisms, Critical Perspectives on Federal Failure, 2008. See also Robert L. Birmingham, Indiana University School of Law: ‘Why Federations Fail: An Inquiry into the Requisites for Successful Federalism’, https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2697&context=facpub. 27 administrative vacuum looms. In that vacuum, autocrats will try to make their move. By presenting a federal Constitution for Europe, it is possible to mitigate – or even eliminate that threat. To counterbalance the treaty-based approach of the EU Conference on the Future of the European Union, FAEF launched its own Citizens' Convention in October 2021. Task: o Design a federal Constitution with a Preamble, no more than ten Articles and a Memorandum of Explanation. The requirement to limit the number of articles to ten forces the Citizens’ Convention to be extremely focused on core aspects of European interests and prevents the Constitution from suffering the same fate as the intergovernmental Treaty of Lisbon: an accumulation of several hundred articles intended to accommodate the interests of the Member States, thus failing to identify, specify and promote European common interests, getting lost in conflicting articles and worst of all - very many exceptions to general rules, making the Lisbon Treaty the worst legal document in the history of Europe. o Use as a basis the centripetal draft of such a federal constitution, written in 2012-2013 by Leo Klinkers and Herbert Tombeur in their European Federalist Papers. Improve that draft in terms of constitutional text and explanatory memorandum. o Work as much as possible in the same way as the Philadelphia Convention of 1787. So, come up with proposals for improvement, discuss the best ones and record it. o Understand that we are working on a historic upheaval, a change of values such as has only been seen three times before in five centuries. o And concentrate - at all costs - on an applied science-based approach. This Citizens' Convention, a six-months peer review by a group of seventy people, strongly involved in the future of Europe, completed its task at the end of March 2022. Its result, a federal Constitution, will be presented to the people of Europe for ratification. Explanation of the Preamble The Preamble distinguishes three groups of values. The first group deals with 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 organization. An important value is the observation that the federal system is based on a vertical separation of powers. The Federal Authority is only competent in a small list of matters of Common European Interests. 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. This third group of values establishes that the 28 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. The naming of the federal Europe was a topic of discussion. From the various proposals, we chose the name the ‘Federated States of Europe’. About the name ‘The Federate States of Europe’ We chose this name in the light of the crisis that, like a many-headed dragon, is not only ravaging the European Union but is branching out into a chain of crises around the world that the treaty-based European Union and the treaty-based United Nations cannot deal with. This is how we picture that global crisis: While, o we are facing a global climate crisis that is forcing us to stop using fossil raw materials and, as a result, an unavoidable energy crisis with the need for unprecedented measures to protect common interests and with unprecedented negative financial and economic effects, while the banking/economic crisis of 2008 has still not been overcome in all member states; o the fight against the global Covid pandemic demonstrates the weakness of treaty-based government and health institutions, the cost of which is driving up inflationary effects on the European and world economy; o the war in Ukraine, in addition to the horrific massacres, demonstrates that an autocrat, served by an extremely flawed federal constitution, can commit war crimes and will not stop threatening the countries in the east of the European Union, knowing that the rest of the world cannot afford a world war and that the UN will not expel him under the UN Charter because he has the right of veto; o the global sanctions against Russia will inevitably have negative financial and economic counter-effects, adding to the already existing financial and economic weakening and thereby reduce the trust of citizens in governments and put national governments increasingly under pressure from anti-government groups; o the EU is increasingly weakened internally by conflicts (a) between groups of member states (north versus south, east versus west) on matters of migration and financing, (b) between individual member states (Hungary, Poland and Slovenia) and the EU center on matters of democracy and the rule of law, (c) between constitutional courts (Germany, Hungary and Poland) versus the European Court of Justice on ‘who is the boss?’; o the EU's identity crisis is compounded by the fact that it is less than ever an autonomous geopolitical partner and has to conform to the wishes of America and NATO; o not only the EU but many parts of the world are facing crises such as rising neo-fascism and autocracy, decay of democratic institutions, the global refugee and migration problem, the crisis in the Middle East, China's oppression of Tibet and the Uighurs and its threat towards Taiwan, the crises in Sudan and Yemen, the oppression of peoples such as the Rohingya, the Kurds, the Moluccas and of other peoples without their own state, not represented in the United Nations; o all of this under a torrent of conspiracy theories, fake news, disinformation and worldwide hacks of IT systems; o altogether, world threats that the United Nations was created in 1945 to prevent, an institution that violates its own rules with impunity, does not apply its own rules to violations by states and, as a result, cannot take a stand against the violation of human 29 rights by key players of the Security Council and, for that reason, is also experiencing an identity crisis, Must it be clear, o that the isolated crises are interlinking to form a chain with the name 'global systemic crisis', a crisis of the institutions and functioning of the world system; o that we are dealing with an effect that shows itself in an unstoppable acceleration, broadening and fusion of separate crises into one global crisis; o that we as Europe are in the midst of a comprehensive, global crisis of values, a crisis that leads to a total reappraisal of what makes life valuable and what we have to do to make it so; o that no treaty-based form of government can withstand this upheaval, as witnessed by the impotence of the EU and the UN; o that it would be a culpable and unforgivable error if the European Union, in its vision on the future of Europe were content merely to adapt and perpetuate its treaty foundation; o that only a democratic federal form of government - supported by a federal constitution of the people and not by executive treaties - can cope with the crises European and global systemic crises; o that the Federal Alliance of European Federalists (FAEF) foresaw7 these developments, making efforts to respond to this historic moment of a world crisis with an equally historic moment of a democratic federal constitution, designed by FAEF’s Citizens' Convention; an example of civic participation that goes beyond airing vain opinions and wishes, and that translates concrete, well-considered knowledge and insights into a legal framework that has not been produced before in the last two hundred years. o that this deserves a name that does justice to the unprecedented determination and energy required to address the European crises within the global crisis; o a name that commands respect in the light of the constitutional and institutional innovations FAEF’s federal Constitution is formulating in the areas of democratic accountability, representation of the people and states, citizen participation and effective decision-making. o a name that inspires confidence that this Federation – based on a democratic federal Constitution - is the only correct response to the vast complex of crises that afflict Europe and the World: The Federated States of Europe. The phrase ‘We, the Citizens who establish The Federated States of Europe by ratifying this Constitution’ shows that this Constitution is ratified by the Citizens themselves. Thus of, by and for Citizens of States of Europe, in accordance with the adage 'All sovereignty rests with the people'. The fact that Citizens of Europe are ratifying this constitution is the most basic form of direct democracy. The names of the States which hereby become members of the Federation shall be added to this Constitution as an addendum after the establishment of the Federation. When discussing a Preamble, the following questions always come up: o Why should there be a Preamble? o Is the Preamble about values or about interests? See Chapters 2 and 4.2 of FAEF's ‘Constitutional and Institutional Toolkit for Establishing the Federal United States of Europe’: https://www.faef.eu/wp-content/uploads/Constitutional-Toolkit.pdf. 7 30 o Should it be a minimalist or an extensive Preamble? o Should the Preamble be formulated abstractly to avoid difficult discussions - and perhaps hostile protests - or should it take a clear position on values, whatever the consequences? Here are the answers to those questions. Why a Preamble? The basis of all legislation is its motivation. In Latin: its 'considerans'. That is the Soul of the legislation. Without a consideration, there is no foundation of a Constitution. Without a Preamble it is not clear why a Constitution is being drafted. Judges who have to assess laws against the Constitution cannot carry out their teleological interpretation without a clear Preamble. Values or interests? A Preamble to a federal Constitution is about values. The values explicitly formulated in the Preamble - are the objectives to be achieved through the deployment of Articles I to X. These articles contain the norms - read means - by which the values - read objectives - must be realised. The composition of a Constitution is thus a balanced relationship between values and norms or – in other words - between ends and means. Interests on the other hand - better the Common Interests of Europe, to be taken care of by the Federal Authority - are part of the norms and thus fall under the articles of the Constitution, not in the Preamble. Moreover, interests are part of a second ends - means relationship. Interests are cared for and secured through policy making. So, the Constitution has two important ends - means relationships: values are ensured by norms and interests by policies. The second relationship is addressed by Article III of the Constitution. Minimalist or extensive? The Constitution does not opt for a minimalist Preamble. Although we limit ourselves to the extent of it, we want to make clear why, after two hundred years, the ever conflictuous Europe urgently needs a federal Constitution. Because only few people know what a federal Constitution is, nor its ‘raison d’être’, we have opted for a Preamble that recognises what is going on – better: what is going wrong - in Europe by clearly stating what should be guarded and protected by the federal Constitution. A minimalist Preamble is evasive to prevent opposition. Such a Preamble does not take a stand. We reject such an attitude. Those who share our point of view and are prepared to fight with us for the values we explicitly mention in the Preamble, we consider to be co-founders of this Constitution. Abstract or clear? Because Europe is at a turning point of its political life cycle, ready for a new system of European states in the form of a federal Europe, we favour clear words. Words matter. Words that guide the course that a federal Europe wants to take. We reject evasive and cosmetic language to please people. After the nobility-anarchy of the Middle Ages, the nation state-anarchy between 1648 and 1945, the treaty-anarchy since 1951 the time has come for a new system of European states, a federal one, with the quiet possession of a Preamble that clearly states the purpose of the federal Constitution. The Federation consists of the Citizens, the Member States, and the Federal Authority. Citizens have ‘freedom’, which is ‘free’ in many different respects. For instance, free to live anywhere in the Federation, free to develop themselves, free to hold religious beliefs and cultural traditions, free from racism, discrimination, oppression, and slavery, free 31 to attain property and to enjoy economic-financial prosperity. Member States guarantee equality in dignity and rights to the Citizens in achieving social-cultural wellbeing. The Federal Authority guarantees mutual human compassion between Citizens in achieving legal-moral wellness within the Member States. It is a Constitution, not a Treaty. A ‘Constitutional Treaty’ (the basis of the present Treaty of Lisbon) is like a ‘pregnant man’: a non-existing and thus deceiving phenomenon. 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, preserving peace, a well-built federation is the best8 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 ratified by the Citizens - in accordance with the elementary aspects of federalism formulated by the philosopher Johannes Althusius in his Political Method9 around 1603 - it is established from the bottom up and not imposed from above. Thus, it is a so-called ‘centripetal’ federation whereby the parts create a center. The opposite, that is a top-down approach, are ‘centrifugal’ (or ‘devolved’) federations where an already existing center creates the parts. The problem with such federations is the fact that there are always central, unitary, aspects at the top that actually belong at the base. For example: the federal constitution of India provides that the President appoints the Governors of the Member States. In this way, top-down influence persists in a place that actually belongs to the base. The Federation is both symmetrical and asymmetrical; symmetrical in the sense that all Member States constitutionally have the same powers in relation within the federal realm; but it is asymmetrical in the sense that internally, i.e. within the Member State’s realm, they each have their own constitutional statute and institutional order; some are decentralized or centralized unitary states, others are already federal states themselves, still others have the statute of a constitutional monarchy; that remains as it is and so our federal Europe is asymmetrical in that sense. This federal Constitution guarantees the Common European Interests of the Citizens of the Federation and leaves it to the Citizens of the Member States, and to the Member States 8 In 1961 Cameroon became a federal state. Partly French-, partly English-speaking. On 20 May 1972 the federation fell apart. This resulted in bloody conflicts between the two populations. Until today. In November 2021 a coalition of activists, with a federalist conviction to end the armed conflict, have created a platform called, Coalition of Cameroon Federalist Groups & Activists. Its spokesman, Dr. Munzu declared: “By nature, Federalism is the highest level of decentralized governance. It is the point at which tolerance, mutual respect, fair play, solidarity, and cohesion in our society meet. Federalism offers the best prospect of instituting in Cameroon a form of democratic governance suitable for overcoming our nation’s governance, institutional, socio-political, and economic development challenges.” Cameroon News Agency, 25 November 2021. 9 The full title of his method is: Politica methodice digesta, atque exemplis sacris et profanis illustrate. It marks a paradigm shift in the concept of sovereignty. Until then, the prevailing doctrine was that sovereignty was one and indivisible. In the hands of the sovereign. Althusius introduced the concept of shared sovereignty that manifests itself within a federal system when members of a federation entrust some powers to a federal authority that can look after their common interests. They do not transfer their powers in the sense of losing them, but make them dormant. In this way, shared sovereignty is created. 32 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 - opt-outs, driven by national interests - to these generally binding rules. This is one of the most important improvements compared to the European Union which, with the Treaty of Lisbon, provides legally unreasonable exemptions for Member States. And thus lays the foundation for treaty-anarchy. Explanation of Consideration Ia ‘Happiness’ consists of the personal development of prosperity, wellbeing, and wellness. That Citizens can pursue their happiness and that governments should help them to do so is an important element in political philosophy, traces of which can also be found in the English Magna Carta (1215), the Dutch Placcard of Abandonment (1581) and the French Revolution (1789). It plays a central role in the American Declaration of Independence of 1776, by the words: "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." It contrasts the reality of countries whose governments oppress, persecute, deceive, or otherwise deny their Citizens’ happiness. This Constitution wants to leave no doubt that the comprehensive meaning of the Preamble is to contribute to the aspiration of Citizens to be happy in a humanly dignified life by giving the responsible authorities - referred to in the Constitution - the constitutional means and mandate to help their Citizens do so. The federal state recognises a European cultural identity with respect for the diversity of languages within the Federation and of cultural identities within Member States. It recognises and supports the right of all countries, regions and territories that are part of the Federation to preserve their language and cultural identity. Explanation of Consideration Ib In the first place, this consideration gives the Federation the task of working relentlessly 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. It gives reason to quote Greta Thunberg: “We deserve a safe future. And we demand a safe future. Is that really too much to ask?” (Global Climate Strike, New York, 20 September 2019). 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 cultures, languages, ethnicities, beliefs, and sciences also creates new sciences, cultures, ethnicities, and religions. This Constitution therefore rejects any agitation aimed at protecting the so-called 'own people or own country first' and will use all legal means to combat such agitation. The Federation 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 33 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. If not, we introduce the thermodynamic concept of entropy mentioned earlier: consuming more energy than we can store and therefore going under. That creates obligations: o to strengthen the demographic and geopolitical position and capacity of Europe; o 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; o with immediate effect, to promote, by seeking the collaboration of the international community, a humane existence for the approximately eighty millions of refugees that are wondering on Earth; o 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 European post-war democracies have come to the end of a seventy-five- year political 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. Thus, politically, economically, and defensively vulnerable as the 2022 Ukraine war showed: the treaty-based EU's geopolitical position is squashed between America and Russia. 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. 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'. Let us add that all sovereignty rests with ‘The primal will to good, beauty & truth’ from which every single human being is a unique expression to be treated and respected as such; starting with our children as consequences of ‘life's longing to itself’. The Treaty of Lisbon as the present basis of the European Union, should be replaced by a Constitution that takes representation of the Citizens as its starting point. This implies, among other things, (a) the abolition of the European Council of Heads of Government and State, a legal monstrosity, far removed from the essence of democracy; (b) the creation of a House of the Citizens, based on popular vote, proportional representation within one constituency - the territory of the Federation; (c) the creation of a House of the States, whose members are appointed by the Member State’s parliaments; (d) an executive government led by a President (supported by two Vice Presidents) elected by the Citizens. Thus, equipped with a democratic mandate; 34 (e) a politically independent Federal Supreme Court of Justice, whose members are appointed after careful consideration of criteria for appointment in a system of checks and balances. The reason is explained by Thomas Jefferson10: “Leave no authority existing not responsible to the people.” 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 treaty-anarchy driven conflict in Europe, 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. Autocratic tendencies are always present. This Constitution enables the institutions of democracy as much as possible to deal with abuses of democratic procedures by building in defence mechanisms.11 The task is therefore a fundamental reorientation of the concept of democracy in 21st century Europe. With a task for transnational political parties12 to consider their own responsibility to devise instruments to defend democracy against parties that abuse the procedures of democracy in order to destroy that democracy. Criteria of organization should be formulated in order to qualify for the nomination as a democratic transnational political party. Probably more than any other organization 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. Explanation of Consideration IIa This consideration makes it clear that the Federation is not inward-looking but realizes that it is part of the greater whole of the Earth. The whole in all its aspects. The Federation therefore maintains relations - as an open system - with all those other parts of the world. As a result, it always stores more energy than it consumes. The Federation rejects the slogan 'Europe first'. Explanation of Consideration IIb Federalism is about peace. Many of the world's current 27 federal states were founded to settle wars, violence and conflicts between countries and regions by means of federal state organization. The Federal Constitution should therefore be seen explicitly as a means of achieving peace. Explanation of Consideration IIc The 'building blocks' of federalism as a state institution originate from the aforementioned Political Method of Johannes Althusius (1603). The 'cement' to inextricably connecting 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 See ‘The writings of Thomas Jefferson: Being his Autobiography, Correspondence, Reports, Messages, Addresses and Other Writing, Official and Private’, p. 32, Cambridge University Press. 11 See Matteo Laruffa, ‘The institutional defences of democracy’, in” Democratia Diritto, March 2019. 12 See Chapter 11 of the ‘Constitutional and Institutional Toolkit of Establishing the Federal United States of Europe’: https://www.faef.eu/wp-content/uploads/Constitutional-Toolkit.pdf. 10 35 the doctrine of the trias politica. The American federal Constitution is based on these writings, while Europe condemned itself to waging wars for centuries. As mentioned before, not only philosophers provided the 'cement' for the building blocks of federalism. Also, political, and social leaders - in the Interbellum period, for example the already stated British Philip Kerr, better known as Lord Lothian - and after the Second World War the Italian Altiero Spinelli who, with his Ventotene Manifesto (1941-1944), laid the foundation for the post-war pursuit of federalism, based on a democratic Constitution. 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, charged with creating a federal Europe on the basis of treaties. 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.” Which means in our perspective that ‘self-government’ will have to be organized in a collective mind space, the dimensions whereof will have to be sharply defined. Explanation of Consideration IId The thirteen former American colonies in late 18thcentury 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 Authority. Without sacrificing the integral member state sovereignty, they asked a Federal Authority to take care – entrusted by some 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 it away and thus losing it', 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 well-built 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 Authority (operating for the whole) and the Member States, also solves another problem. Namely the principle of subsidiarity. Which means first and foremost: to the Citizens be left what they can do better for themselves in any pursuit to their prosperity, to the Member States is left what they can do better for their Citizens in any pursuit to the wellbeing of their Citizens, and to the Federation is left what it can do better for the Citizens in the Member States in any pursuit to their wellness. 36 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, judiciary, and executive body, and, 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 IIe As for a horizontal separation, the order should be: legislative, judicial, and executive. The legislative power is a strategic power (answering moral ‘why’-questions), advised by the judicial power - a tactical power (answering cultural ‘how’-questions) - that controls the executive power, which is an operational power (answering financial ‘what’-questions). These three powers/branches are transcendent as ‘sovereignty’ is a transcendent power. All former considered: the ‘horizontal separation’ should be an ‘equally balanced qualified separation’ of authorities. These three powers are equal and interdependent in a triarch structure, balanced by a system of checks and balances. Seeing these powers forming three intersecting circles, then in the centre ‘happiness through wisdom’ may be found. This Constitution will elaborate on this in Article I. The horizontal separation of the three powers - the legislative, the judiciary and the executive - 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 Federated States of America - the trias politica must be established both at the level of the Federal Authority 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 Federated 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 Federal 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. 37 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. Checks and balances are about the integration of three separate ‘mind spaces’ with their own definitions of their sets of moral values and ethical norms. It is to be preferred not to envision the three powers/branches in a linear way, but to envision them in a circular way, each of them with their own center of definition of administrative integrity. One cannot do without any of the other two. For any of them are different sets of ‘why’-, ‘how’- and ‘what’questions valid, which have to be defined for each of them in relation to 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 entity if they violate the provisions under I and/or II. In accordance with the adage 'All sovereignty rests with the people', the Citizens of the Federation 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. Explanation of Article I - The Federation, the Rights, and a World Federation Explanation of Clause 1 – the formal basis From a formal point of view, the sequence of establishing this Constitution is as follows. Citizens of the European Union and of other European states - vested with the right to vote ratify this Constitution by simple majority per state. It is up to the respective parliaments of those states to decide whether to follow the will of their Citizens. The states that follow the will of their Citizens – based on rules of their own constitution allowing the state to enter international cooperation - thus establish the Federation. This Federation has two possibilities of existence. Either alongside the intergovernmental European Union, or as a Federation within that European Union. After all, federal Germany, Austria, and Belgium are already members of the EU. Explanation of Clause 1 and 2 – the philosophical basis The Federation is all about the sovereignty of the Citizens, the Member States, and the Federation itself. Sovereignty means the right and obligation to ’reign’; not to ‘govern’. This means: o For Citizens to reign their households based on socio-economic principles to attain prosperity through financial liberty. o For Member States to reign their households based on socio-cultural principles to attain wellbeing through cultural equality. 38 o For the Federation to reign its household based on judicial principles to attain prosperity and wellbeing through morality and the rule of law. The fact that no place is given in the Constitution to monarchy or other nobility and that the Federation is built on democratic institutions implies that it is a Republic. The fact that no place is given to God or religions also implies that the Federation is a secular Republic. The fact that the Constitution states in several places that the federal body has no power to influence the internal order of the Member States means that those Member States remain within the Federation as they are. So, monarchies remain monarchies, but the Federation itself is - as one nation - a secular Republic for all its Citizens. The mutual relationship between the Citizens, the Member States and the Federation form an idiosyncratic trias politica: independent reigning spaces under the principle of subsidiarity, precisely defined, lest deliberations will produce unintelligible cacophonic noise. If not, Citizens’ and Member States’ thoughts will be quelled by hierarchical power play. Each of the three entities of that idiosyncratic trias politica should have and mind its own business for the sake of subsidiarity. The Federation must protect itself against any (group of) Citizens or Member States with egoistic financial, cultural, or political impulses breaking the complex of values of the Preamble. There are views that deny or minimise Citizens' own independent and sovereign space for thought and action. However, history has repeatedly proven that Citizens do have their own space, and that the Constitution (or documents of the same value) must reflect this. Think of the English Magna Carta of 1215 in which the vassals of King John Lackland made it clear that with his signature he had to respect the inalienable rights of his people, otherwise they would depose him. The Netherlands, with the Placcard of Abandonment of 1581, declared the Spanish King no longer to be their sovereign and were prepared for an 80-year war to win this battle. The French Revolution of 1789 and the Declaration of Independence with which the thirteen British colonies declared their independence in 1776 are also examples of the inalienable right of citizens to free themselves from autocratic rule. After WWII, the Dutch, Portuguese, French, Belgian, German, and British colonies did the same. Most of them by force. Thus, our federal constitution guarantees the free space of Citizens in various places. First, by placing the ratification of the Federal Constitution primarily in the hands of the Citizens of Europe: the ultimate form of direct democracy. This makes it a Constitution of, by and for the Citizens. It is then up to the respective parliaments to decide whether to follow the will of the people. States that do not follow the will of their people therefore do not enter the Federation. States that follow the vote of the Citizens become co-owners of the Federation. Subsequently, this own space of the Citizens is laid down in Section III of the Preamble, which reads: 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. 39 Finally, the free space of the Citizens is reflected in the Articles II, III and VII of this Constitution, articles that use different methods to ensure that Citizens are principally involved in decision-making and deliberative processes. Other views grant no or little free space to the Member States of the Federation. They see the States’ position as 'only' representing the people. So, limited to an administrative role. In other words, they see the space of the Citizens and of the States as coinciding, as it were, and only see a clear distinction between the space of the States and that of the Federal Authority. The Constitution does not follow this line of thinking. Although the Member States are the representation of their people, they are responsible for their own decisionmaking space for the democratic and functional order of the State. This is confirmed by Article VII, Section 3, Clause 2, reading: “The Federation will not interfere with the internal organization of the Member States of the Federation, but still demands that those states as democratic states will be governed by the rule of law. This is a reinforcement of Clause 2 of Article I, reading: “The Federation shall respect the equality of Citizens and Member States before the Constitution as well as their identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” The relationship of these three independent - subsidiary - worlds of thought between the Citizens, the Member States and the Federation can perhaps be better understood by visualizing it with a figure of intersecting circles. Circle 1 is the world of the reign of the Citizens, Circle 2 of the Member States and Circle 3 of the Federation. In the middle - at number 4 - lies the outcome of their combined reigning, expressed in the maximum protection of the complex of values of the Preamble: the ‘holy grail’ so to speak, untraceable but nevertheless obliging to an eternal search by the three entities involved. A ‘holy grail’ once expressed by Confucius, reading: "When the sabers are rusted and the shovels glisten, when the steps of the temples are worn out by the feet of the faithful and grass grows in the courtyard of the courts, when the prisons are empty and the granaries are full, when the doctors walk and the bakers drive, then the empire is well governed." 40 Further understanding of this relationship is complemented by a figure of three concentric circles. Citizens Member States Federation The outer circle is that of the Citizens and includes the circle of the Member States. The circle of the Member States contains the central part, the Federation. This symbolizes that there is no world of Member States outside the world of Citizens. And that there is no world of the Federation without the world of the Member States. All in all, this second group of circles symbolizes the centripetal character of the federal Constitution: the building of the Federation from the bottom up, from the Citizens of Europe, in combination with those Member States that follow the will of the Citizens and thus are together the co-owners of the Federation. Explanation of Clause 1 and 2 – the content The text of the first Clause defines the specific nature of a republican federation: it consists not only of States, but also and especially of their Citizens; a federation is of the Citizens and of the Member States. They are the co-owners of the Federation. For all those who fear that the Federation, as a purported superstate, would absorb the sovereignty of the participating Member States, it should now be clear that within the Federation the Member States remain as they are: France remains France, Estonia remains Estonia, Spain remains Spain, et cetera. Their constitutional and institutional order remains unaffected. So, they retain their constitutional identity (republic, monarchy), their democratic form of government (representative democracy) and their organizational identity (centralized unitary state, decentralized unitary state, federation, monarchy and any entities based on nobility, such as Luxembourg). In other words, the federal constitution radically breaks the EU treaty system, which intervenes in the internal order of the Member States with binding directives and thus forces them to become more and more alike through compulsory assimilation. And thus, a threat to one of the most important values of the Preamble: the preservation of the cultural identity of the Member States and their regions. There is more: by explicitly naming the Citizens as co-owners of the Federation, there is a constitutional mandate to consult them on proposed changes to the territory of the Federation. A right that the European Citizens have not yet received under the Lisbon Treaty. We address this right as a form of direct democracy – as well as deliberative democracy - in various places in the Constitution and especially in Article VII. 41 The Member States are represented alongside the Citizens at the federal level of government. Their representatives have an individual mandate. They do not act in the name and on behalf of the political institutions of their State. This important principle in the functioning of the Federation is addressed in the organization of the European Congress consisting of two Houses. Other relevant federal experiences are those of the so-called multi-national federalisms, such as the Canadian, Swiss, and Indian ones, which show how federalism can be a response to the need to keep different cultures and languages together without undermining the identities of states. In this we have looked at the wording of Article 4(2) of the Treaty on the European Union (TEU). Explanation of Clause 3 Clause 3 of Article I makes it clear that the Federation has a non-hierarchical vertical division of powers. This creates ‘shared sovereignty’ between the Member States and the Federal Authority: the Member States entrust the Federation with the use of some of their powers to look after Common European Interests. These are interests that the Member States themselves cannot look after (anymore). For instance, a common European foreign policy and a common European defence. Entrusting the Federal Authority with some powers of Member States does not give it any hierarchical power, let alone enable it to intervene in the internal order of the States.13 Both the Federal and Member State authorities are sovereign in those matters assigned by the Constitution to both levels of government. In the sense that the Federation is assigned powers for several limited policy areas, no others. For lovers of historical best practice from the end of the 18th century, this principle of the vertical separation of powers (not to be confused with hierarchic powers) was already laid down in the first ten days of the Philadelphia Convention and further elaborated in a draft Constitution a few weeks later. It constitutionally establishes that the Federal Authority cannot exercise hierarchical power over the States whenever it would suit the Federal Authority. Those familiar with the Treaty of Lisbon, and more specifically with the partial treaty under the name 'Treaty on European Union', may ask 'What's new'? After all, that Treaty on European Union stipulates in Article 4(1): 'In accordance with Article 5, powers not conferred on the Union in the Treaties shall be conferred on the Member States'. This looks like two drops of water on our Article I, Clause 3. But appearances can be deceptive. The subsequent Article 5 of that Treaty of Lisbon states that the delimitation of the Union's competences is governed by the principle of conferral. This is what should NOT be done; the principle of conferral leaves far too many competence issues indeterminate. Whether the European Union has power to act is determined by the principles of subsidiarity and proportionality; that is to say, in short, the Union may act decisively in cases which the Member States themselves (or their component parts) could not (better) take care of; in other words, the principle of subsidiarity (leave to the States what the States themselves can best do) is not absolute, but relative. See Chapter 5 of the ‘Constitutional and Institutional Toolkit of Establishing the Federal United States of Europe’: https://www.faef.eu/wp-content/uploads/Constitutional-Toolkit.pdf. 13 42 This is a good place to comment on the concept of 'proportionality'. It is an important issue within the current intergovernmental system of the EU. Put simply, it is a question of the extent to which the EU authority on the one hand, and the authority of a national EU member state on the other hand, may exercise the same power. This concept is directly related to the fact that the EU treaties provide for so-called 'shared powers'. This means that one and the same power may be exercised both by the EU authority and by an EU Member State. This raises the question: how far may one and the other go in the exercise of this shared power? In practice, this has proved unworkable. Because the principle of proportionality in its application is measured against the principle of subsidiarity: leave to the States what the States themselves can do best. Thus, the hierarchical decision-making of the European Council has robbed the already severely leaking subsidiarity of its meaning, leading to insoluble problems of interpretation. A federal system does not have this problem at all. In a federation, the concept of 'shared powers' is unthinkable, because of the vertical division of powers, which is the essence of a federal organization. Let us continue on indeterminate competence issues. In one of the two component parts of the Lisbon Treaty - namely the 'Treaty on the Functioning of the European Union' - there are some articles that give a concrete list of the competences of the Union. But those articles are partly hierarchical in character, especially in the group of shared powers/competences these are powers/competences allocated to both levels of government, but where the Union, when acting, obliges the Member States to conform to them. This does not exist in a well-built federation. As if all this were not enough, there are also subsidiary competences available to the European Union, granted in Article 352 of the same 'Treaty on the Functioning of the EU'. This means that the Union can act if this is necessary to achieve an objective in the Treaties and if no other provision in the Treaty provides for measures to achieve it. This is called 'the flexible legal basis'. This is a manipulative and arbitrary key that fits every lock. Apparently, the European Union cannot to this day abandon the technique of invoking the goal of 'everincreasing integration' in order to seize power when it suits it. Why does this not even remotely resemble federalization? Let us discuss it again. Practice has shown for years that the principle of subsidiarity leaks badly. The Protocol preventing the European Union from arbitrarily taking decisions outside the realm of its expressly granted competences, including the watchdog role of national parliaments in ensuring compliance with that Protocol, was already working very badly before the advent of the Lisbon Treaty. It has not worked at all since the entry into force of that Treaty in 2009, because from then on, the European Council took over principled decision-making. And nobody can stop that machine. Why is that? Because of the hierarchy we mentioned above. Something once decided by the European Council means the obligation for the Member States to implement it uniformly in their own country: this is the source of compulsory assimilating integration. Not only is this alien to a centripetal built federal system, but it is also unclear who is exclusively competent in what matters. It does say a few times that this or that authority has exclusive competence, but Articles 1 to 15 of the 'Treaty on the Functioning of the European Union' contain too many vague additions that there is no clarity. 43 So, the Federation does not provide that the Federal Authority can overrule the Member States when it suits that Authority. It confers on the Federal Authority an exhaustively enumerated set of powers and that is all. There is no hierarchy towards the Member States, nor any division of powers. Just like in the Swiss and US Constitution. This raises the question of whether a Member State is the same as a Nation State. This question is motivated by fear of the way in which European nation states, since the Treaty of Westphalia of 1648, have continued waging wars with their nation-state anarchy until 1945 and, within the intergovernmental state system that has developed since then, use treatylaw anarchy to evade the obligations of the EU treaties if they feel that those obligations threaten their interests. But the way in which the vertical separation of powers - see Article III - takes place determines which Common European Interests become the concern of the Federal Authority and which powers are entrusted to that authority by the Member States to correct any deviations from the norms of those Common European Interests. Thus, the Member States of the Federation are not nation-states in the sense of the Westphalian nation-states. This is the essence of federalism: a true federation has shared sovereignty but not shared powers: each, the Federal Authority, and the Member States, has its own powers. This is the result of the first two weeks of debates in the Philadelphia Convention that began in late May 1787. The 'Virginia Plan', which James Madison had put on the table as the federalist opening piece, contained a clause giving the federal authority the power to overrule 'improper laws' of states. There was an objection to this, made explicit in the 'New Jersey Plan', produced immediately afterwards. The parties subsequently resolved this dispute in the 'Great Compromise' by opting for a vertical separation of powers, expressed in a series of limitable powers of the federal authority: no hierarchy. Thus, no intervention from above if a member state performs its legislative or executive functions 'improperly'. Nevertheless, the Constitution does protect the Citizens of the Member States against possible infringements of their representative democracy and the rule of law. That's how it should be: in a federal system, the Member States are and remain sovereign in their own circles. The Constitution therefore does not mention the principle of subsidiarity at all, for the simple reason that the exhaustive enumeration (more on this later) of federal competences establishes subsidiarity in an absolute sense. The Federal Authority has no discretionary powers - let alone arbitrary powers - to determine for itself what Member States would not be able to regulate or achieve by themselves. Explanation of Clause 4 Immediately after the American Constitution came into force, the need for a Bill of Rights became apparent. This came in the form of ten amendments to the seven-article Constitution. That Bill of Rights subsequently formed an annex to the Constitution. The tenarticle federal Constitution of the Federation does not contain a Bill of Rights either. It refers to rights that apply by reference to other documents. It is as follows. Clause 4 of Article I sees the rights of European Citizens as deriving from natural rights. Man has no authority over these. Natural rights are fundamental, self-evident rights. And what 44 'goes without saying' does not need to be explained. In addition to these rights by virtue of nature, we have rights by virtue of agreements made with the consent of all participants. In our modern time these agreements are laid down in Charters because they have a transnational character. The wording 'every living human being' means that the Constitution does not grant natural, fundamental, self-evident rights to every other living being on earth: animals, plants, the seas, and all possible other living, non-human phenomena. That does not alter the fact that there are moral duties of humans towards other living beings. Agreed rights are derived from them, but such rights are currently very much under discussion and can better be laid down in other documents – e.g., Climate Accords - than the federal Constitution. So, there is a division between natural rights and cultural rights. Natural rights do not need to be formulated, because to do so would be to erroneously state that they are adaptable or negotiable. This is only possible with rights derived from natural law that are laid down by men made agreement in Charters. Clause 4 refers to Charters for those concrete, men made, cultural rights, without considering the Charters’ various intergovernmental arrangements and references to intergovernmental institutions. It is not necessary, nor advisable to incorporate concrete rights already laid down in Charters literally into the Constitution. This is also to avoid the need to develop new case law and the consequently need to amend the Constitution when jurisprudence gives cause to modify these cultural rights. In the event that the EU ceases to exist, the Federation can adopt the Charters - adapted or not - as its own human rights domain. Post-totalitarian constitutions have always worked like this: they open themselves to international human rights treaties and thanks to these they manage to update the protection of fundamental rights without having to change the text all the time. To pretend to fix an exhaustive list of fundamental rights without referring to the human rights treaties or the Charter of fundamental rights would end up frustrating the need to guarantee a high standard of protection to the rights themselves because the text of the constitutions gets old if it is not linked to the evolution of the international community. The history of constitutional law is full of referrals like this, we need to produce a document that has the ambition to work. If we do not recognise the constitutional value of the Charter of Fundamental Rights, we will undermine the strength of fundamental rights. It will bind lawmakers, but this is what constitutions normally do and this is how the judicial review of legislation works. Courts rely on the Constitution to declare the invalidity of pieces of legislation that are seen as in conflict with fundamental rights. There are many examples of constitutional provisions like this: Art. 10, paragraph 2, of the Spanish Constitution, Art. 16 of the Portuguese Constitution, Art. 5 of the Bulgarian Constitution, Art. 20 of the Romanian Constitution, Art. 93 of the Netherlands, and many others. If this reference is ignored, we should write a detailed list of rights and this would make the constitutional text much longer, whereas one of the objectives is to draft a short, effective, and comprehensible text. So, this explains why it is not necessary, nor advisable to incorporate concrete rights already laid down in Charters literally into the Constitution. 45 The Constitution - once ratified - binds everyone: individuals, governments, and private organizations of all kinds. Therefore, it is not necessary to require a signature from Citizens and organizations to confirm commitment to the Constitution. That is implicitly established. The reason to mention it explicitly here is the circumstance that there are always individuals or organizations that violate human rights. With Article I, the Federation is – as one nation, composed by Citizens and Member States - a secular republic that unconditionally opposes the violation of human rights by any person or institution. Explanation of Clause 5 The freedom of information and transparency is so fundamental and vital for democracy and legitimacy/public trust in authorities, that it deserves to be included directly right there in Article I. Explanation of Clause 6 This Constitution has been ratified by the people and parliaments of the states that wish to be the first to join the Federation. States that wish to join later, i.e. after the creation of the Federation, require their national parliaments to ratify the Constitution. It is up to the states themselves to make arrangements with their people for this purpose. Explanation of Clause 7 This Clause is a combination of two sources. Firstly, it breathes the spirit of Article 11 of the Italian Constitution, which reads: “Italy rejects war as an instrument of aggression against the freedom of other peoples and as a means for the settlement of international disputes. Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations. Italy promotes and encourages international organizations furthering such ends.” The second source is derived from the aspirations of various movements for a World Federation: a federal state is - compared to always failing treaty-based intergovernmental cooperation - a superior form of statehood. It combines the care for common interests of member states with guarantees for the sovereignty of the member states on the one hand, and peace, solidarity, and prosperity on the other. The denial of this in Europe, since 1800, has caused untold victims and material damage in the 19th and 20th century. By repeating the denial after WWII the Balkan war in the early nineties of the previous century, and the Ukraine war in 2022 serve as cynical evidence. It requires politicians with an understanding of the standards of federal state formation to make this happen. With this Constitution, they have a new opportunity to do what their predecessors failed to do for two hundred years. Explanation of Article II – The Legislative Branch Explanation of Section 1 – The European Congress 46 Clause 1 implies that the European Congress is the assembly of both Houses at the same time. Only the Congress has legislative power. But there are some nuances to this principle. The President of the Federation has a kind of derived legislative power in the form of 'Presidential Executive Orders'. These are regulations of a lower order than the formal legislative power of Clause 1. Furthermore, these Executive Orders must be traceable to that legislation of Congress. Another nuance is that, as in the case of the USA, the Federal Supreme Court of Justice has ruled several times that Congress can delegate legislative power to federal agencies. This Federal European Constitution does allow this as well. In Clause 2, Brussels is the seat of both Houses of the European Congress, but with the reservation that the European Congress may decide to choose another location. The reason is that it is uncertain whether Belgium will be among the initial members of the Federation. And, in any case, the European Congress must have the power to choose another location within the federal territory. Few constitutions specify the location without a way for the assembly to move itself within the nation, even if they specify a capital. E.g., the Swedish constitution does name Stockholm as its capital, but allows for the parliament to decide to move elsewhere. The US federal government is in Washington, DC, because of the Residence Act of 1790, not because of the constitution. The European Congress should decide freely such matters when constituting itself. The peoples’ delegates might even think it proper to mark the transition to a new paradigm of European history by moving the seat of European Congress to a new location altogether. Like Brazil’s Brasilia, or Indonesia's plan to move the capital from Java to the island of Kalimantan, one could even imagine a future new administrative capital, located geographically in the center of our Continent, named ‘Europa’, taken from Greek mythology about Princess Europa and symbolized by a statue of this Princess? Explanation of Section 2 - The House of the Citizens Clause 1 rules to have one constituency for the whole Federation; no elections for the House of the Citizens per State, as is the case in America and also in the EU. This Constitution opts for voting for the whole Federation: one constituency of the countries belonging to the territory of the Federation. So, a Slovakian will be able to vote for a Belgian, an Irishman, a Cypriot, a Spaniard, a Dutchman, et cetera. This single federal constituency will give rise to real transnational political parties. Only through a single constituency for the Federation can a direct – uniting - relationship be established between Citizens and their delegates. Thus, delegates of the House of the Citizens are representing the citizens’ European-interests, not the citizens’ state- or districtinterests. The Americans' main objection to a single American constituency (instead of their present system of electoral votes per district/state) has been based on the fear that the population of the most densely populated cities and areas would gain more influence than the inhabitants of rural areas. Although we understand why and how a district/state-based election system was designed in the first years of the American Constitution, this must be 47 seen as a first-class methodological error. An error in the sense that the essence of a federal state - namely, to look after Common Interests that transcend state interests - cannot be represented by an electoral system based on local, regional, and state interests. Such concerns belong to the competences of the states and their components. The reason for a federation's existence is only the need for a body capable of looking after common interests that individual states can no longer look after on their own. The choice at the time resulted in the weakest element of the American political system. Elections based on districts de facto led to a two-party system. In practice, this meant that the loser's voters were not represented. The adage 'the winner takes all' led to an unprecedented power struggle in which both parties did not – and still do not - hesitate to use any means to gain and keep power. During the Trump era, this reached an all-time high. After Trump’s presidency numerous Republican-controlled states have passed laws that further impede the other party's ability to gain power through elections. Including measures to prevent - or make it very difficult for - certain populations, particularly people of colour, from casting a vote. This is supported by Gerrymandering; that is, periodically adjusting the boundaries of districts in such a way as to guarantee electoral gains for one party. This process is further driven by PACs: Political Action Committees that use many millions to influence the election campaign in favour of one of the two parties. It should be mentioned that in America, too, the pernicious nature of this system has long been recognised. Since 1800, over 700 proposals to reform or eliminate this system have been introduced in Congress. However, amending the Constitution in this way always failed. Nevertheless, as of June 2021 fifteen states plus the District of Columbia (Washington) forged the National Popular Vote Interstate Compact. They agreed to give all their popular votes to the presidential candidate who wins the overall popular vote in the fifty states and the D.C. This agreement comes into effect when they gather an absolute majority of votes (270) in the Electoral College. This plan, of course, meets with legal objections and will have to prove itself at the next elections. However, it is an important signal for Europe never to make the same methodological mistake of basing federal elections on a district/state system. How the UK's district system with the (alternating) dominance of one party could have led to Brexit says it all. Such a system is a fundamental error seen from the essence of a federal organization. The Citizens at the base of society vote for local, regional, and national interests in their own local, regional, or national elections. So, on the basis of their own systems. A federal Europe is not allowed to interfere with this. Federal elections are about European interests. The delegates of the House of the Citizens are not delegates of a district, nor of a state, but of the European Citizens. That requires an electoral system that is suited to this. A system that makes it possible for Citizens at the basis of society to understand that they have to give substance to a small, limitative list and exhaustive of Common European Interests. This leads to a fundamental rejection of district and state elections and the introduction of a system of popular voting for the territory/constituency of the entire Federation. This is new and therefore difficult to implement. But that is the task we face. 48 It is especially difficult for transnational political parties. There are already some such parties, but the EU system forces them to raise their profile within the state in which they have registered as political parties. That is, their electoral lists for intra-state positions or for the European Parliament must include only persons from the state concerned. Being registered in several states does not make them transnational, yet. They only become transnational when they are allowed to propose candidates - adhering their values or ideology - for the House of the Citizens from any Member State of the Federation. In a federal Europe based on popular voting within one constituency - the territory of the Federation - political parties will have to reinvent themselves. Just as a federal Europe says fundamentally goodbye to a treaty-based Europe, so transnational political parties will have to devise completely new methods and techniques to put the best candidates on election lists and ensure that federal elections are about European interests, fully understood and supported by the Citizens. While preserving their own local, regional, and national cultural identity, it should help Citizens to slowly acquire a European sense of togetherness as well. So, the electoral system of this constitution is based on the so-called list system: (a) each transnational political party deposits a list that ranks eligible persons, (b) voters vote for the list of their choice and thus simultaneously for a person. The electoral divide determines how many votes a candidate needs to win a seat. Example of an electoral divide: if ten million valid votes are cast for one hundred seats, the electoral divide is 10,000,000:100 = 100,000 votes. This number of votes is needed for one seat; this is the electoral divide. The political parties themselves decide who will be on the electoral list. Whether there is an (un)balanced representation of the States in the House of the Citizens of the Federation depends on how the political parties compile their electoral lists. The political parties can prevent small Member States of the Federation from having no or very few delegates in the House of the Citizens. They should put good candidates from such States on electable positions. In America, delegates of the House of Representatives only sit for two years. Why do we opt for five years for the European House of the Citizens? The reason is: the democratic deficit of the European Union, which has been criticized for years, can only be compensated by giving the Citizens' delegates a central role. The EU-states, with their nationalistically driven interests of intergovernmentalism, have deprived the representation of the Citizens of its powers for too long. Moreover, we do not consider it right to send the delegates of the House of the Citizens on an election tour every two years. When they have just settled in, they would have to go out again to secure their next election. In the Federation, they can devote the better part of five years to looking after the common European interests of the Citizens, rather than the interests of their re-election. We do want to limit the number of terms to two. So, a maximum of ten years in the House of the Citizens. In this way the Constitution can prevent the quality of the work of representation from deteriorating because of the concentration of dubious power, laziness, or excessive influence from lobbyists. 49 The last sentence of Clause 1, that federal elections are held based on federal laws, prevents Member States from influencing the organization and operation of federal elections with their own laws. Clause 2 introduces the concept of ‘dynamic sizing’. The population of the Federation will fluctuate for a long time. For this reason, it is not wise to fix the number of Citizens' delegates in the House of the Citizens. The number of delegates of that House should be as balanced as possible with the size of the people. That size will fluctuate with the expected growth of the number of Member States (a political matter); it can decrease because of structural shrinkage of the population or increase by an influx from immigrants (a demographic matter). Therefore, a clear and manageable arrangement has to be made between fluctuations of the population on the one hand and a corresponding size of representation on the other. We think that, initially, this system should work with a census cycle of ten years. But we know technological progress could make wise to opt for a different cycle. In this way, the constitution does not have to be amended if the size of the federation's population fluctuates. In Clause 3 another revolutionary rule is introduced. Though political parties are free to choose the candidates they want to stand for election, Clause 3 extends the system of checks and balances by regulating requirements for acquiring the political office. Checks and balances are powerful defense mechanism against undemocratic rule. But on the issue of eligibility, there is no check on whether a candidate has the right competence and suitability to perform the most important political office in the Federation: representing the Citizens. Citizens want to be represented by competent and suitable persons. We cannot leave the selection of candidates entirely to the political parties because they will always maximize their power in the fight for the political values they cherish. If anywhere in the constitutional and institutional system a place must be reserved for Citizens to have influence, it is at the front of the door where delegates want to enter the House of the Citizens. Therefore, Clause 3 regulates that the House of the Citizens lays down rules on the competence and suitability of candidates for membership of that House. This is a mandate for transnational political parties to put on the electoral list candidates who are thoroughly familiar with the fundamentals of the political office, the most important office in the world. So, this task for transnational political parties - in their role as gatekeepers - requires a total change in mindset, selection and training of the candidates deemed necessary for that political office. The law also regulates the Citizen’s role and position in that process. Clause 3 regulates further that are eligible those who have reached the age of eighteen years and are registered as Citizen of a State of the Federation during at least seven years. Of course, one might wonder whether that is not too young for a political office of that weight. But the same can be said of someone who is forty years of age or older. It is a matter of principle. If one considers eighteen years old enough to be recruited into the army and sent out to protect the country, even with the mandate to shoot, or the risk to be shot, then that age should also be good enough to be eligible for election. Setting the bar on twentyfive will disenfranchise young voters and bar them from electing peers that might be qualified, competent, and great talents/future leaders. We would exclude a considerable 50 percentage of Europe’s citizens, citizens that, one can argue, have that highest stakes and interest in best possible long-term policies for future custodianship of the planet. The earlier mentioned list-system is also ideally suited to promoting gender equality. If each political party draws up its list of candidates in the alternating gender ratio, the composition of the House of the Citizens will, by definition, approach the 50% female-to-male ratio, unless new demographic developments and/or regulations force transnational political parties to consider other gender forms as well. The constitution does not provide for by-elections for delegates of the House who leave office early. We propose that the list system should include a system of deputies. Then there is the question: ‘How can a German know whether to vote for a Luxembourger or a Cypriot?’ That is a non-issue. Elected members of the House of Citizens deserve their seats, not because they are connected to citizens of a District, a Region, or a Member State, but because they are uniquely connected to common European interests. It is this identity that justifies their election. And it is this identity that, in a quiet process of a few years, will make the Citizens of Europe understand what common European interests are and align their votes accordingly. We can already see this happening among young people. They are voting for representatives of European policies. If Sweden's Greta Thunberg stands for election in the House of Citizens, Greek and Spanish citizens will also vote for her. Clause 4 introduces another form of influence by Citizens by the obligation on the part of the House of Citizens to organize annually multi-day Citizens' Panels. These are aimed at systematically collecting the views of expert panels on how the legislation of the House should be improved to strengthen the policy on the Common European Interests addressed in Article III. The composition and working methods of those panels shall be laid down by law. This Clause introduces, together with elements of classic representative democracy and direct democracy, also elements of deliberative democracy. The ability to enter dialogue with each other is a necessary condition for arriving at good decision-making, meaning a process of taking decisions after consulting Citizens, after an exchange of arguments in the political arena, in which the best arguments prevail, tested against the public interest and in which compliance with the decisions/laws by Citizens is guaranteed because there is support in society. When the instrument of referendum is used, we run into the following problems: Citizens can make their preferences known: o without having to enter a dialogue with other citizens; o without having to weigh up the pros and cons within the framework of the public interest; they can let their own interest prevail; o without having to present arguments to support their choice; o without having to tell the world what choice they have made; o without being accountable to anyone. 51 Put that next to the situation in which a politician must operate. He must enter a debate with fellow politicians within the parliamentary setting; that debate is about exchanging arguments. Afterwards, the politician takes a stand, whereby he is obliged to keep the public interest in mind. It takes place in public, so that the voter can take note of it, address the politician, and take it into account when deciding how to vote in the next round of elections. That’s why the Constitution explicitly states – in Clause 7 - that no secret vote is allowed in the Congress. In this sense, direct democracy is not the only way in which the decision-making process is not the exclusive domain of politics: deliberative democracy, organized in accordance with the standards based on Jürgen Habermas's ‘Theory of Communicative Action’ can become a strong junction between citizens and representatives. A power-free space must be created in which participants are completely free to make statements. These statements can be criticised on three levels: is it factually true, is it normatively correct and is the statement truthful? For such deliberative sessions Citizens are invited who can make statements about the problematic reality with reason and feeling. In this phase, politics does not interfere; it is merely an organizer and spectator. The next step – policy-making - is the legislator's turn, which is fulfilled by the democratically elected representation of the people. It is then up to the administration to execute legislation and regulations. It is important that the rules that usually lead to restrictions on the freedom of Citizens are complied with. The quality of the first step in the policy process and the quality of the representation of the people determine the extent to which the rules are complied with. In Clause 5 of this Section 2 is explicitly stated, as in the American and Swiss Constitutions, that the delegates of the House of the Citizens exercise a mandate to be accountable only to those European Citizens. Their mandate is also exclusive - that is to say, they may not exercise any other public function, office, or mandate, at any level of government; in this way we prevent conflicts of interests and the concentration of power. So, no double mandates, nor with a position or such a relationship with European or global enterprises or NGO’s as to influence the Federation's decision making. Clause 6 - on who has the right to vote - does not need further explanation. Clause 7 is explained as follows. No such position of power – the Chair of the House - should be in the hands of one single person. Power corrupts, and lots of power corrupts a lot; it is not impossible to corrupt a college of three people, but it is far easier to find out. Representation Overseas Countries and Territories (former colonies) There is one more important aspect to deal with. In the context of representation attention must be paid to the position of territories which, after the abolition of colonial status, still maintain a legal link with the former colonizer. Let’s check first the situation in the USA. 52 In addition to the 435 voting delegates of the US House of Representatives, there are six nonvoting delegates from the District of Columbia (= D.C. with the federal capital Washington), Guam, the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, and a resident commissioner from Puerto Rico. The Federation takes the following position. Brussels – or any other location of the European Congress - is the constitutional capital of Federation, but not, like Washington in the District of Columbia, a territory with its own constitutional status that justifies (non-voting) membership in the House of the Citizens. Therefore, no separate seat for ‘Brussels’ in the European House. Another question is what status the so-called Overseas Countries and Territories should have, legally linked to a Member State of the Federation: France, the Netherlands and Denmark. Their associate membership of the European Union is very similar to that of the six territories mentioned above that are delegates of the US House of Representatives without voting rights. We therefore recommend that these Overseas Territories also be given such a status in the House of the Citizens: membership without voting rights. Of course, this leaves us with the question: how many delegates per territory and who chooses or appoints them? This could be dealt with in a simple way: the Member State concerned organizes an election for one non-voting delegate of the European House of the Citizens in the territory concerned. The principle of incompatibility of offices should also apply here. One cannot be a delegate of the European House of the Citizens and hold a public office in one's own constituency. In a nutshell, the electoral system of this Constitution boils down to the following points: o The Federation has universal suffrage, popular voting, with seats distributed based on proportional representation. o Everyone who is registered in a Member State of the Federation and is 18 years of age has the right to vote in periodic elections to the House of the Citizens. o Voters registered in more than one Member State, for example migrant workers or students (originating from Member State A but working or studying in Member State B), receive only one ballot. o The constituency is the entire territory of the Federation. No elections per Member State, nor per District. So only the popular vote applies throughout the constituency of the Federation. o Conscientious transnational political parties place candidates on electoral lists and ensure equal gender distribution on those lists; they also ensure candidates from all Member States so that a voter from one Member State can vote for a candidate from whatever other Member State. o After the election, the total vote count determines which candidate has won a seat in the House of Citizens. A seat is determined by dividing the total number of votes cast by the number of seats in the House of Citizens. So, the number of times a political party reaches that number determines the number of seats for that party. The seats that remain are called residual seats. They are distributed proportionally among the political parties. Explanation of Section 3 - The House of the States In Section 3 it is a deliberate choice not to give the House of the States the name 'Senate'. This choice of words has to do with the importance of always pointing out the strength of 53 the Constitution through the system of checks and balances: the balance between looking after the interests of the Citizens - under the responsibility of the House of the Citizens versus looking after the interests of the States, under the responsibility of the House of the States. The delegates of the House of the States are not called ‘Senators’ because this word is derived from the Latin 'senex'. That means ‘old man’. As they – men and women - are eligible for election from the age of 30, we do not consider the term 'Senator' to be appropriate anymore. The American Constitution was drafted in 1787 and came into force in 1789. According to that text, Senators were elected by the legislature of the States. Not elected by the Citizens. This was changed in 1913 by Amendment XVII. From then on, the US Senate is composed by the Citizens of the States. We wonder whether that is a good Amendment. It was, and still is, the intention that the House of Representatives represents the interests of the People, and that the Senate represents the interests of the States. This is an essential feature of the federal system: the Federation is formed by the Citizens and the States. Therefore, their representation is arranged separately from each other, from two separate sources: one from the Citizens and the other from the States. It is also an indispensable part of the checks and balances. To prevent a federal European Congress from placing all the power in the hands of the Citizens and undervaluing the interests of the States, this Constitution chooses the system whereby the delegates of the House of the States are appointed by and from the Legislatures of the Member States. Nine delegates per State, not two as is the case in the USA. For the following reasons. A larger number of delegates per State ensures that each State of the Federation is adequately represented in the federal House of the States, however small and sparsely populated a State may be. By assigning each State of the Federation nine delegates in the House of the States, each State is assured of sufficient representation to participate effectively in federal decision-making. Moreover, this figure may be an incentive for Europe's smallest States, with populations of at most a few million (or even less), to join the Federation. Under the Lisbon Treaty, they are now guaranteed five to eight seats in the European Parliament. By joining a Federation, they are guaranteed nine seats in Congress that is, in the House of the States - even if none of these smallest States were to win a seat in the elections for the House of the Citizens. The fact that small Member States in a federal Congress also have delegates in the House of the Citizens is a matter and task for transnational political parties, which must organize their electoral lists in such a way that Luxembourg, Cyprus, Malta, and other small States – if entered the Federation - are also represented. The question may rise: why not opting for more than nine? Or less? The reason for not more than nine is that with that the danger of specialization looms. Specialists will certainly be found in the House of the Citizens. That is sufficient. In our view, the House of the States consists of generalists, wise people with broad experience in the way a State translates social-cultural developments into sensible policies. The reason for not less than nine is the guarantee that small Member States must have that they can adequately counterbalance the House of the Citizens which, because of its election based on one constituency, is 54 completely detached from judging the interests of states, let alone interests of districts, because it is elected to look after the encompassing interests of Europe. The term for a delegate of the House of the States is five-year, the same as the members of the House of the Citizens. We diverge with the US Constitution with its mid-term elections of the House of the Citizens because we want to avoid a situation of permanent electoral campaign running; also diverging from the US constitution regarding the appointment of the delegates of the House of the States: a fixed term of five years and no stepping down of half of the House delegates after three years. The Constitution does not provide for elections for the early replacement of delegates so, a system of deputies must be included in the Rules of Procedure of the House and in the Rules of the States. As in the case of the House of the Citizens, we cannot now anticipate the year in which the first appointments to the European House of the States will be made. The date will depend on when the Constitution enters into force. It is possible that the appointment of the House’s delegates by the State Parliaments presupposes that all national legislatures are in session. However, there is a real possibility that the planned appointment of delegates coincides with parliamentary elections in one State or in a few States. Therefore, the Constitution provides for a period of five months during which the appointments of delegates can take place. In this way, the States can appoint their delegates every five years in time, before a Parliament is dissolved. And so, the continuity of European governance is assured. The only drawback, it seems, is that in the event of the premature dissolution of their national Parliament, delegates will have to wait a few extra weeks to take up their office, but in any case, on 1 June of the year of appointment. Clause 2 of Section 3 contains the same defense mechanism as in Section 2. It is a check on the competence and suitability of candidates for the political office of representing the States. The House of the States makes rules to check the competence and suitability of candidates for the political office of a delegate. Clause 2 provides further that Citizens from other parts of the world must have lived officially in a Member State of the Federation for at least seven years - and thus have sufficient Citizenship - to be eligible, for election, at the age of twenty-five, as a delegate of the House of the States. Clause 3 is the deliberative equivalent of Clause 4 of Section 2: the House of the States shall organize once a year a multi-day meeting with panels of delegates of the parliaments of the Member States to gather information on how to improve the realization of the Common European Interests as envisaged in Article III. The law shall determine how these panels are composed and how they shall operate, considering that delegates from each parliament of the Member States will participate in these panels and that the outcome of these meetings will improve and strengthen the Common European Interests. Clause 4 states that the mandate of a delegate of the House of the States is individual; a delegate receives no instructions, not even from the institutions of the State from which he comes, or which elected him. The mandate is exclusive: it excludes any other public office. 55 So, when they are appointed by their own state parliament as delegate of the Federation, they resign as delegates of their parliament. Clause 5 rules that the House of the States chooses its Presidency, consisting of three delegates of the House, with the right to vote. The House appoints its own personnel. Clauses 6 and 7 deal with matters of impeachment. Clause 8 forbids secret votes. Relationship with ACP-countries As with the Overseas Territories, there is the question of the position of the 79 ACP countries, now independent states but previously colonies of European countries. In Africa, in the Caribbean and in the Pacific. The European Union maintains a special relationship with these countries through treaties, mainly aimed at creating trade relations that (can) benefit both parties. However, this relationship is always under pressure. While the EU - within the framework of the policy of the World Trade Organization - wants to abolish as many trade barriers as possible, the ACP countries usually advocate the continuation of protection. The periodic renewal of the treaty relationship between the EU and the ACP countries does not seem able to eliminate these tensions. On the contrary. However, we cannot afford this in the rapidly globalizing world. Therefore, we propose a paradigm shift in this area as well: promote the functioning of EU-ACP treaties by giving the ACP countries a place in Congress. What would be against giving six seats (without voting rights) in the House of the States, the House explicitly intended for the interests of states, to two delegates from the African ACP group, two from the Caribbean group and two from the Pacific group? In order to promote gender equality, these two delegates per A, C and P should always consist of a woman and a man, unless new gender criteria force another order. Although they would not have the right to vote, they could participate in deliberations in the House of the States committee(s) that prepare a House position on trade treaties that the President of the Federation wants to conclude. This would give a more positive dimension to the increasingly strained relationship between the European Union and those ACP countries: those countries would no longer be negotiators on the other side of the table, but partners on the same side. It seems to us that it is up to the three groups of countries themselves to elect or appoint their delegates to the European House of the States. Here too, the principle of incompatibility of offices should apply: one should not hold, alongside the (non-voting) membership of the European House of the States, any other public office anywhere. It does not seem necessary to include this in the Constitution itself. This specific relationship between the Federation and the ACP countries can be settled by treaty. Should anyone argue that the absence of a literal passage in the Constitution conflicts with the Constitution, the Federal Supreme Court of Justice can teleologically establish, on the basis of the explicit intention of the Constitution as described here in the explanatory statement, that this is in fact in accordance with the Constitution. If all the countries of the current EU join the Federation, our House of the States would therefore consist of 27 x 9 = 243 people. Plus, the above mentioned (non-voting) 3 x 2 = 6 delegates from the former colonies of European countries, the ACP group. 56 Explanation of Section 4 – The gathering of both Houses This Section regulates the way of working when both Houses of the European Congress meet together. Explanation of Section 5 – Rules of Proceedings of both Houses There are therefore three Rules of Procedure: one for the European Congress (the two Houses together) and one for each of the two Houses. The recording of deliberations and votes implies the openness of these matters (no secret vote allowed). Explanation of Section 6 – Compensation and immunity of delegates of Congress Clause 1 may speak for itself. Clause 2 is about immunity which must guarantee the free exercise of the mandate. Each delegate of Congress must be able to function without external pressure. Explanation of Section 7 – The Federal Supreme Court of Justice, the Federal Central Bank, the Federal Court of Auditors, and the Federal Ombudsman Office This Section provides that the European Congress shall establish four – non-legislative and non-executive - principal institutions of the Federation and shall regulate their powers by law. Explanation of Article III - The Powers and tasks of the Legislative Branch Explanation of Section 1 - The legislative procedure Clause 1 entitles both Houses of the European Congress to make initiative laws. Not the President and the Ministers of his Cabinet. These executives do not even act in the Houses. This strict separation of legislative and executive power guarantees the autonomy of the European Congress in its core task: the drafting and final approval of federal laws. Clause 2 is a rather revolutionary text. Laws - with commandments and prohibitions - are the strongest instrument by which a government determines the behavioural alternatives of its Citizens. Citizens who believe that laws do not sufficiently consider the requirement of inclusiveness, deliberative decision-making, and representativeness in the sense of respecting and protecting minority positions within majority decisions, with resolute wisdom avoiding oligarchic decision-making processes can challenge this up to the highest court. The Federal Supreme Court of Justice has the power to test laws against the Constitution. In this Clause 2, therefore, lies a fundamental aspect of direct democracy: Citizens have the right to challenge the correctness of a law before the highest court. Clause 3 gives the exclusive power to the House of the Citizens to make tax laws. Unlike legislation in the general sense, the House of the States therefore does not have that power. However, that House may try to change those tax laws through amendments. The reason for declaring only the House of the Citizens competent to take an initiative in this regard is based on the consideration that 'groping in the purse of the citizens' is solely and exclusively at the discretion of the delegates of those Citizens. 57 The House of the Citizens thus decides what type of federal taxation will take place: income tax, corporation tax, property tax, road tax, wealth tax, profits tax and/or value added tax. Or perhaps it will leave those types of tax to the jurisdiction of the States and creates only one new type of tax under the name Federal Tax, provided that States' taxes are simultaneously reduced or abolished to prevent this Federal Tax from being imposed at the expense of the Citizens. The Constitution says no more about this because it is a subject for the politically elected. The way in which federal taxes - collected by Member States and remitted to the Federal Authority - are conditionally returned to Member States in financial difficulties (e.g. after devastating storms or pandemics) is a matter that can be settled by establishing a Fiscal Union14 within the federal system. Clause 4 excludes the President's and the Praesidium’s involvement in the legislative process of both Houses. The USA Constitution gives the President the power to veto a draft law, but then a complicated process follows between the President and both Houses to agree or disagree. We do not consider it desirable for the President, as leader of the Executive Branch, to participate in law making, nor in interfering in a possible dispute between the two Houses. We provide the establishment of a mediating bicameral commission in case both Houses cannot work it out together. Clause 5 gives the Praesidium a say in legislative matters of a lower level than a law. Explanation of Section 2 - The Common European Interests If one sees the Preamble as the Soul of the Constitution, then Section 2 of Article III is its Heart. It mixes procedural provisions with substantive issues and the way they are to be dealt with partly by the Federation and partly by the Member States. The end-means relationships of the Constitution The Explanatory Memorandum to the Preamble already contains some considerations on the end - means relations of the Constitution. It is useful to elaborate on that now. Building a federation is mainly a matter of structure and procedures. It is not about substantive policy. There is no such thing as federalist policy, for example, in the sense of federalist agricultural policy. There are, however, the policies of the Federation. But their content is not determined by the fact that it has a federal form of organization but by the political views and decisions of the members of the House of the Citizens, of the States and of the Federal Executive Branch. The Federation itself has no political colour. It is not leftwing; it is not right-wing, is neither progressive nor conservative. It is a safe house for all European Citizens, regardless their political, social, religious belief. A structure with procedures and guarantees that are geared as much as possible towards taking care of Common European Interests. In other words, interests that individual Member States can no longer take care of on their own. 14 For more information about the operating of a Fiscal Union within the Federation see paragraph 3.8 of the ‘Constitutional and Institutional Toolkit for Establishing the United States of Europe’: https://www.faef.eu/wpcontent/uploads/Constitutional-Toolkit.pdf 58 Section 2 shows the list Common European Interests in relation to substantive subjects for which the Federal Authority needs powers to look after those interests. Because this Federation is built on the principles of centripetal federalizing (by building from the bottom up the parts create a center for the whole) the Member States shall determine for which Common European Interests they are entrusting15 which powers to the Federation. This is the most important condition for preventing the Federation from developing into a superstate. Federations that are built top down (centrifugal/devolved federalisation: a central government creates or expands the already existing parts) have the characteristic that there will always be centralist aspects in the federation, with the risk of weakening the classical federal structure that aims to ensure that the parts always remain autonomous, independent, and sovereign. Thus, the powers of the federal body come from the Member States, not in the sense of transferring or conferring, but in the sense of entrusting: the Member States make some of their powers dormant, as it were, so that the Federation can work with them to realise the Common European Interests. That is the socalled vertical separation of powers between the Member States and the Federal Authority, leading to shared sovereignty between the two.16 This requires a return to the passage on ‘Values and Interests’ in the General Observations of the Explanation to the Preamble. The Preamble to a federal Constitution is about values. The values are the objectives to be achieved through the deployment of Articles I to X. These articles contain the norms – read means – by which the values – read objectives – must be realised. The composition of a Constitution is thus a balanced relationship between values and norms or – in other words – between ends and means. Interests on the other hand – better the Common European Interests, to be taken care of by the Federal Authority – are part of a second ends–means relationship. They are the means to realize the norms. And they are cared for and secured through the Vertical Separation of Powers between the Federal body and the Member States. So, that is a third means-to-end relationship. Note that these three ends–means relationships are part of the ingenious system of checks and balances and require such attention that the ends are clear, that the means are clear and that the means can realise the ends. The arrows in the diagram – from right to left show the means-to-end relations: 15 The German philosopher Ernst Jünger formulates this 'entrusting' in the following way, contained in the last word of this quotation: “That a legal path can exist which all basically recognize—of this there can be no doubt. We are plainly moving away from the national states, away from the large partitions, toward planetary orders. These can be achieved by covenants and conventions, assuming only the good will of the partners. Above all, this would have to be demonstrated by an easing of sovereignty demands—for there is fertility concealed in renunciation.” See ‘The Forest Passage & Eumeswil’, Wewelsburg Archives 1954, p. 45. 16 The vertical separation of powers is the same as establishing subsidiarity. In other words, nowhere in a welldesigned federal constitution is there a sentence that points to the principle of subsidiarity for the simple reason that the concepts of ‘vertical separation of powers’ and ‘subsidiarity’ coincide. See for more information the paragraphs 4.2.5, 4.2.8, 5.2, 5.3.2, 5.4 of the aforementioned Toolkit: https://www.faef.eu/wpcontent/uploads/Constitutional-Toolkit.pdf. 59 The FAEF Citizens’ Convention started the process of improving a provisional Constitution text with the perception that there are Values and Common European Interests; and that we can achieve (much) more through cooperation. Realization of these Common European Interests are the objectives of forms of cooperation between the Member States and a Federal Authority. By expanding the scope, scale, and depth of the collaboration, it becomes possible to define those Common Interests in terms of means to fulfill the Norms and the Norms to fulfill the Values. These Values are understood as the foundation of the Federation, and as the ultimate objectives to be achieved. They have become the objectives in terms of the ‘what’ and indicate the desired direction (of development) for the Federation. The Articles I - X concern principles for the organization of the Federation (structure and process) - the ‘how’ - and reflect (must be consistent with) the Values. The Articles can be considered Norms. i.e. rules and expectations (of ‘behavior’) that can be enforced. They are the means to fulfill the Values. The Common European Interests are the ‘where’. They can be considered ‘result areas’ that are established with a centripetal approach to federalization (bottom-up approach). These result areas are the more concrete issues/challenges where the Federation can provide added value for the Member States and the Citizens of the Federation. The ‘field of activity’ of the Federal Authority is defined through the Common European Interests, that are identified by the Member States and its Citizens. The Vertical Separation of Powers defines the content, the depth and the scope of the Common European Interests and is the beginning of the series of goal-means relationships. Anything that goes well - or perhaps not well - in the process of the vertical separation of powers by which Member States entrust powers to the Federal body will positively or negatively affect the meaning and value of the Common Interests. That, in turn, will affect the quality of the Norms and, in turn, that will affect the quality of achieving the Values. Thus, the success of the vertical separation in a good cooperative effort ultimately determines the success of what the Federation aims to achieve with the Values of the Preamble. The Clauses of Section 2 Clause 1 lists a provisional series Common European Interests. This is the fulcrum of a federal Constitution. The only reason to make a centripetal federation is that States realise that they can no longer look after some interests on their own. They then jointly create a Federal Authority and ask that body to look after a small set of common interests on their behalf and of their Citizens. 60 Listing – provisionally - names of Common European Interests gives an idea of what these interests mean. For a better idea of their content, see Appendix III A at the end of the explanation of this Article. The Appendix describes the procedure for the vertical separation of powers which gives indications of the subjects of policies that are entrusted to the care of the Federal authority. Clause 2 refers to Appendix III A that regulates the procedure of the vertical separation of powers. See the end of this Explanation on Article III. More powers than the ones in Section 2 It is to be expected that the practice of the Federation will show that the Houses of the European Congress feel that they do not have enough powers with the exhaustive Common European Interests mentioned in Section 2. A system of 'additional powers' will undoubtedly develop. An expansion of the complex of powers of both Houses that may be at odds with the intentions of the Constitution. One should think here of the following - potential developments. One of the most important is called 'Congressional Oversight'. This oversight - organized mainly through parliamentary committees (both standing and special), but also with different instruments - concerns the overall functioning of the Executive branch and Federal Agencies. The aim is to increase effectiveness and efficiency, to keep the executive in line with its immediate task (execution of laws), to detect waste, bureaucracy, fraud and corruption, protection of civil rights and freedoms, and so on. It is a comprehensive monitoring of the entire policy implementation. This system arose from the inception of the US Constitution and is an undisputed part of the ingenious system of checks and balances. It will undoubtedly develop in the same way in Europe. The Constitution does not know this 'Congressional Oversight' in so many words, but it is supposed to be an inalienable extension of the legislative power: if you are authorised to make laws, you must also be authorised to control what happens in their implementation. It is self-evident in an administrative cycle. Of course, there have been attempts to demonstrate with a strict interpretation of the US Constitution that this form of 'Implied Powers' is not in accordance with the Constitution. However, the US Supreme Court has always rejected this claim. This is in line with the vision of President Woodrow Wilson, who saw this parliamentary oversight as being just as important as making laws: "Quite as important as legislation is vigilant oversight of administration."17 Explanation of Section 3 - Constraints for the Federation and its States Clause 1 restrains policies and actions that may be crushing for biodiversity or that, for example, polluting energy companies are opened or remain open in violation of climate agreements. This ban must make a positive contribution to energy and food availability and security. According to Clauses 2 and 3 of this Section, neither the States of the Federation, nor the Federation itself, may introduce or maintain regulations which restrict or interfere with the 17 For more information on these issues, see Chapter 10 of the aforementioned Toolkit: https://www.faef.eu/wp-content/uploads/Constitutional-Toolkit.pdf. 61 economic unity of the Federation. Again, powers not expressly assigned to Congress by the Constitution in Article III, Section 2 rest with the Citizens and the States. This is the other side of the coin called 'vertical separation of powers'. Nevertheless, in the USA it was considered useful and necessary at the time not only to place limits on Congress in their Article I, Section 9, but also to remind the States that their powers are not unlimited. To this end, their Article I, Section 10 - our Article III, Section 3 - stipulates what the States may not do. Clause 4 imposes the same limitation on the legislative power of the States as that of the Federation in order to maintain legal certainty, not to affect the exercise of judicial power and to safeguard rights of Citizens in force or enforced. It is also important, a subject that has often been addressed by the US Supreme Court, that States may not legislate to override contractual obligations. Legal certainty for contractors and litigants is of a higher order than the power to declare a contract or a court decision ineffective by law. In Clause 5, the provision that none of the Member States of the Federation may create its own currency (taken from James Madison's Federalist Paper No. 44) is a clear warning to some EU Member States considering returning to their own former national currencies. Nevertheless, states are allowed to issue bonds and other debt instruments to finance their deficit spending. Clause 6 states that export and import duties are not within the competence of the States unless they are authorised to do so. They may, however, charge for the expenses they incur in connection with the control of imports and exports. The net proceeds of permitted levies must fall into the coffers of the Federation. This matter is likely to have a high place on the agenda of the previously recommended six delegates of the House of the States (without voting rights) delegated by the ACP countries to the European House of the States. Clause 7 emphasizes once again that defence is a federal task. On the understanding that the European Congress may decide that a Member State shall accommodate on its territory a part of that federal army and keep it ready to act in case of emergency. Explanation of Section 4 - Constraints for the Federation In this Section 4 we have included a number of additional rules to combat political corruption. Because gigantic sums of money are spent on election campaigns in America, there is a saying: "Money is the oxygen of American politics". In our federal constitution for the Federation, Article III, Section 5 contains Clauses justifying the adage: 'Money should not be the oxygen of European politics'. Appendix III A - The procedure for the vertical separation of powers18 By ratifying the Constitution, the Citizens adopt the limitative and exhaustive list of the Common European Interests. The question, however, is: how can one properly determine which powers are necessarily needed to enable the Federal Authority to do its job? For that, 18 For drawings explaining the operation of the vertical division of powers, see Leo Klinkers, Chapter 2 of 'Sovereignty, Security and Solidarity', Lothian Foundation Press 2019. 62 a procedure is needed. A procedure of debate, deliberation, and negotiation within which the Citizens (direct democracy) and the States play a prominent role. For this purpose, Clause 3 refers to Appendix III A which is an integral and therefore mandatory part of the Constitution, but for any future adjustment it is not subject to the amendment rules of the Constitution. If the Constitution is ratified by enough Citizens to establish the Federation the limitative and exhaustive list of the Common European Interests will be established. The meaning of this is: the Citizens have spoken; that list is non-negotiable during the debate, deliberation, and negotiation necessary to determine which powers should be entrusted – by means of that vertical separation of powers - to the Federal Authority, to enable the Federation taking care of the Common European Interests. Let us repeat once again that the Member States retain their sovereignty in the sense that they do not transfer or confer parts of their sovereignty to the federal body and would thus lose those sovereignty. What they are doing is entrusting some of their powers to the federal body because that body can look after Common European Interests better than the Member States themselves. Thus, the Member States make their relevant powers dormant. The effect is shared sovereignty. The vertical separation of powers will always be a matter of debate and will sometimes require adjustment. That is why the outcome of the debate and negotiation on the vertical separation of powers will be another Appendix to the Constitution: Appendix III B. The Appendix III A on the procedure of the process of the vertical separation of powers and the future Appendix III B, containing the result of that procedure, are integral parts of the Constitution but might be adjusted during the years without being subjected to the constitutional amendment procedure. This is to prevent that any necessary adjustments of the vertical separation will force to amend the Constitution itself. On the basis of three principles, the founding fathers of this Constitution lay down the following procedure for determining the vertical separation of powers. Principle 1 – from bottom to top It would be a severe system error to arrange the allocation of powers from top to bottom. Wherever possible in the construction of a federal state, one should always work from the bottom up. That is a ‘commandment’ of the centripetal way on which this federal Constitution is based. This requires asking the Member States which parts of their complex of competences they wish to make dormant, so that the federal body can dispose of them to take care of the Common European Interests. One must be careful not to think in terms of decentralization or devolution. Decentralization/devolution is ‘moving from top to bottom’: the center shares parts of its powers with lower authorities. This does happen in federal states that are centrifugally built: a centre creates parts or expands already existing parts. But the effect of such a course of action is that there will always remain unitary/centralist aspects. First of all, the central state may, at any time, without consulting its citizens, decide to get back all of its powers, because there is not a Federal Constitution that states otherwise. If countries such as Spain and the United Kingdom were to decide to further decentralize their already existing devolved autonomous regions into parts of a federal state, they would run the risk of creating a relatively imperfect federal state as well. Principle 2 – debate and negotiation on Common European Interests 63 If the electorates of some European states ratify the Constitution by a majority, and if their parliaments follow the will of their people, the debate, deliberation, and negotiation on the powers that the Member States entrust to the Federation starts. This process is as follows: a) Internal deliberation by individual Member States Each Member State has two months to prepare a document in which it puts forward proposals on the powers it wishes to entrust to the Federal body. In total, they draft one document for each Common European Interest. In doing so, they give an insight into the way in which they think the Federal body should be vested with substantive powers and material resources. A Protocol establishes the requirements that the documents must meet to be considered, among which the organization of the way Citizens participate in that process (direct democracy). The central requirement is that they must deal with the representation of Common European Interests that a Member State cannot (or can no longer) represent in an optimal manner itself. b) Aggregation of the documents Under the leadership of FAEF, a Transition Committee is created beforehand to regulate the transition from the treaty-based to the federal system. This is where the Citizens come in as well: process-steering democracy. Led by FAEF, that Committee consists of (a) non-political Experts on the Common European Interests and (b) non-political Citizens. Point (a) is required for expertise. Point (b) is required to prevent the deliberation and decision-making on the vertical separation of powers from degenerating – as has been the case in the treatybased intergovernmental EU-system since 1951 – into nation-state advocacy. The Transition Committee aggregates the documents of the Member States into a total sum of powers to be vertically separated, and the substantive and material consequences. Two months are available for this. c) Final decision-making The aggregated document is the agenda for a one-week deliberation on each Common European Interest. Under the leadership of the Transition Committee, final decisions are taken on the best-balanced allocation of powers from the Member States to the Federal body. This final document will be an integral Appendix III B of the constitution. After its implementation in the federal system practice will show when, why and how Appendix III A on the procedure of the vertical separation of powers needs improvements, so that the Appendix III B on the result of that procedure must undergo improvements as well. d) The start of the construction of the federal Europe The result of c) marks the beginning of the building of the federal Europe. Guided by a Transition Committee of Citizens, the Member States determine concretely how the federal body with a limited number of entrusted powers of the states should represent a limited amount of Common European Interests. It marks a barrier between the tasks of the Federation and the fields in which the Member States remain fully autonomous and the Federation cannot become a superstate. Principle 3 – Debatable and negotiable subjects Taking from the limitative and exhaustive list of Common European Interests of Section 2, Principle 3 contains non-exhaustive examples of topics on which the debate, deliberation and negotiations may take place. The formula is as follows: 64 The European Congress is responsible for taking care of all necessary regulations with respect to the territory or other possessions belonging to the Federation, related to the following Common European Interests. 1. The livability of the Federation, by regulating policies against existential threats to the safety of the Federation, its States and Territories and its Citizens, be they natural, technological, economic or of another nature, or concerning the social peace. Potential topics for debate, deliberation, and negotiation on the vertical separation of powers: (a) to regulate the policy on all natural resources and all lifeforms, on climate control, on the implementation of climate agreements, on protecting the natural environment, on ensuring the quality of the water, soil, air, and on protecting the outer space; (b) to regulate policies on preventing and fighting pandemics (c) to regulate the policy on the safety and availability of food and drinking water; (d) to regulate the policy on preventing scarcity of natural resources and dysfunctional supply chains; (e) to regulate the policy on social security, consumer protection and childcare; (f) to regulate the policy on employment and pensions; (g) to regulate the policy on health throughout the Federation, including prevention, furthering and protection of public health, professional illnesses, and labor accidents; (h) to regulate the policy on justice and on establishing federal courts, subordinated to the European Federal Supreme Court of Justice. 2. The financial stability of the Federation, by regulating policies to secure and safe the financial system of the Federation. Potential topics for debate, deliberation, and negotiation on the vertical separation of powers: (a) to regulate the policy on federal tax, imposts, and excises, uniformly in all territories of the Federation, on the debts of the Federation, on the expenses to fulfill the duties imposed by this and on borrowing money on the credit of the Federation; (b) to regulate the policy on installing a Fiscal Union; (c) to regulate the policy on supervising the system of financial entities; (d) to regulate the policy on coining the federal currency, its value, the standard of weights and measures, the punishment of counterfeiting the securities and the currency of the Federation. 3. The internal and external security of the Federation, by regulating policies on defence, intelligence and policing of the Federation. Potential topics for debate, deliberation, and negotiation on the vertical separation of powers: (a) to regulate the policy on raising support on security capabilities, among which the policy on one common defence19 force (army, navy, air force, space force) of the Federation, on compulsory military service or community service, and on a national guard; See Mauro Casarotto, ‘Without a Constitution-based Federal Europe a Common Defence is built on quicksand’, in Europe Today: https://www.europe-today.eu/2022/03/07/without-a-constitution-based-federaleurope-a-common-defense-is-built-on quicksand/?fbclid=IwAR3XOaCsjHZjtS7Qj0FM3W8KNCpzR3n4Zl3G095X7YPCGulE5cgL2CaYIMU. 19 65 (b) to regulate policies in the context of external conflicts, policies on sending armed forces outside the territory of the Federation, on military bases of a foreign country on the territory of the Federation, on the production of defensive weapons, on the production of weapons for mass destruction, on the import, circulation, advertising, sale, and possession of weapons, on the possibility of bearing arms by civilians; (c) to regulate the policy on declaring war, on captures on land, water, air, or outer space, on suppressing insurrections and terrorism, on repelling invaders, and on fighting autonomous weapons; (d) to regulate the policy on fighting cybercrimes and crimes in outer space; (e) to regulate the policy on one federal police force; (f) to regulate the policy on one federal intelligence service; (g) to regulate fighting and punishing piracy, crimes against international law and human rights; 4. The economy of the Federation, by regulating policies on the welfare and prosperity of the Federation. Potential topics for debate, deliberation, and negotiation on the vertical separation of powers: (a) to regulate the policy on the internal market; (b) to regulate the policy on transnational production sectors like industry, agriculture, livestock, forestry, horticulture, fisheries, IT, pure scientific research, inventions, industrial product standards. (c) to regulate the policy on transnational transport: road, water (inland and sea), rail, air, and outer space; including the transnational infrastructure, postal facilities, telecommunications as well as electronic traffic between public administrations and between public administrations and Citizens, including all necessary rules to fight fraud, forgery, theft, damage and destruction of postal and electronic information and their information carriers; (d) to regulate the policy on the commerce among the Member States of the Federation and with foreign nations; (e) to regulate the policy on banking and bankruptcy throughout the Federation; (f) to regulate the policy on the production and distribution of energy supply; (g) to regulate the policy on consumer protection; 5. The science and education of the Federation, by regulating policies on the improving the level of wisdom and knowledge within the Federation. Potential topics for debate, deliberation, and negotiation on the vertical separation of powers: (a) to regulate the policy on scientific centers of excellence; (b) to regulate the policy on transnational alignment of pioneering research and related education; (c) to regulate the policy on the exclusive rights for authors, inventors, and designers of their creations; (d) to regulate the policy on progress of scientific findings and economic innovations. 6. The social and cultural ties of the Federation, by regulating policies on preserving established social and cultural foundations of Europe. Potential topics for debate, deliberation, and negotiation on the vertical separation of powers: 66 (a) to regulate the policy on strengthening unity in diversity: “Acquiring the new while cherishing the old”; (b) to regulate the policy on arts and sports with a federal basis. 7. The immigration in, including refugees, and the emigration out of the Federation, by regulating immigration policies on access, safety, housing, work and social security, and emigration policies on leaving the Federation. Potential topics for debate, deliberation, and negotiation on the vertical separation of powers: (a) to regulate policies on access – or denial of access - to the Federation, on security measures against terrorism and cybercrime related immigration, on mode of housing, employment, social security; (b) to regulate policies on leaving the Federation. 8. The foreign affairs of the Federation, by regulating policies on strengthening the Common European Interests in the interest of global peace, social equality, economic prosperity, and public health. Potential topics for debate, deliberation, and negotiation on the vertical separation of powers: (a) to regulate the policy on external cooperation to strengthen the policies on the foregoing Common European Interests. (b) to define the means by which this common interest is promoted, e.g. through cooperation by States, especially concerning international trade (what is trade, with whom, under what conditions), developmental projects (what projects, with what partners, under what conditions), disaster relieve, projects to mitigate (the consequences of) climate change/global warming. (c) to regulate policies to promote global federation. To sum it up, correct thinking about federalizing is as follows 1. The Common European Interests are the same as a Kompetenz Catalogue. It is a limitative and exhaustive list of concrete interests of a common European nature. They must be formulated in an abstract, generic way. In other words: the common interests must have a name. For example, 'The financial stability of the Federation’. 2. Although the list of Common European Interests is exhaustive, the Constitution must provide for the possibility of adapting that list. The constitutional amendment procedure and that of Appendix III A shall apply. 3. These Common European Interests must be promoted by means of policies. To design and implement policies, the federal body needs powers. This requires a so-called vertical separation of powers: the states entrust a limitative and exhaustive list of powers to the federal entity. 4. Because we are building a classic centripetal federation (i.e., from the bottom up), it is up to the Member States to decide which powers they want to entrust to the federal 67 body. This is the key to limiting a possible Pandora's box of an endless list of policies for free application by the federal body. 5. This methodology is a natural limitation to the bottom-up determination of what Member States want to entrust to the federal body. They might want to limit themselves and in that (defensive) attitude lies the perfect opportunity to clarify together what the real Common European Interests are. The purpose of making a federation is not to enable a federal body to act as a new ruler but to look after essential European interests. 6. When working on the vertical separation of powers three subjects play an important role: (a) Stick to the principle of working from the bottom up. This stems directly from the Political Method of Johannes Althusius who formulated the building blocks of federal statehood around 1600. (b) Require the Member States to write down, each for itself, which powers it wants to entrust to the federal body. A Transition Committee of experts and other Citizens (proces-steering democracy), led by FAEF, aggregates these Member State documents, and decides on it as the final decision on vertical separation. Only with the composition of that document does it become clear which powers, and thus which policies, will be represented by the federal body. (c) Require, in addition to working with a Transition Committee of (expert) Citizens, that the Member States consult Citizens in the process of weighing up the options within their own state. This is another opportunity deliberative democracy. 7. That bottom-up process determines how many specific policies are taken out of the box to take care of the generic common interests. It leads naturally to an agreement between the Member States because they themselves have determined what they want to entrust to the federal body. And the federal body has to accept that. This indicates how much a federation differs from the treaty-based EU. 8. In other words, we should not already in the Constitution, nor in the Explanation, establish the vertical separation of powers or drive it in a certain direction. We must stick to a procedural way of working bottom up. 9. For this reason, the topics are intended only as possible subjects for debate and negotiation in the procedure of vertical separation of powers. 10. This line of thinking leans heavily on standards and principles of classical federal statehood. Explanation of Article IV – The Executive Branch Explanation of Section 1 - The Federal Government The purpose of Section 1 is to prevent: (a) that too much power is concentrated in the hands of one person, the President, possibly afflicted with autocratic aspirations; 68 (b) that a two-party system may emerge that allows one party to form blockades; (c) that after elections, the tops of the Ministries are replaced on party-political motives. This aspect of America's ‘spoil’ system - exchanging top political officials of one political party for other top political officials of the other party after an election - does not only hamper the continuity of policies but is also a cause of corruption. Career civil servants must know that they can reach and keep the top of the civil service without any political affiliation. It is intended to promote: (a) the appointment of Ministers by the President - thus without interference from the European Congress - but with the consultation of the two Vice Presidents; (b) a high quality of members of the executive branch to be worthy of political office; (c) collegiality in decision making so that it is clear that there is collective responsibility and accountability; (d) consistently focused on the interests of the entire Federation and skilled in addressing behaviour that threatens the Constitution; (e) and, above all, a signal to career officials that they are part of a ‘merit system’ and not part of a ‘spoil system’. Although the President is both Head of State and Head of Government, he is assisted by two Vice Presidents. The power of a President of the Federation must never degenerate into autocratic decision-making. This is why the President, together with two Vice Presidents, forms a Praesidium with which the President must consult before making important decisions. This Constitution is based on a Presidential system, in which the President is both Head of State and Government. Most European countries have a Parliamentary system. This means that the Parliament oversees the Executive branch, headed by a Prime Minister, and can therefore call the Prime Minister and Ministers to account. A Presidential system - in which the President is both Head of State and Government - has no ministerial accountability, nor the so-called rule of confidence (= a minister must resign if he no longer has the confidence of parliament). In such a Presidential system Congress, the President and (as is the case in this Constitution) the two Vice Presidents, are elected by the people and answer to the people. The people express that in this Federal Constitution in three ways: o By deposing the federal government if it violates the constitutional order of the Constitution if the people have no other remedy (Preamble, III). o By means of elections. o By various forms of direct and participatory democracy. Such a Presidential system, provided it is balanced by an ingenious system of checks and balances, is the purest form of trias politica. 69 However, this does not mean that the Houses of the European Congress do not supervise the functioning of the Executive Branch. On the contrary. Both Houses own an extensive Committee system and Staff20 to oversee the operations of the Federal Government. The federal government makes its decisions collegially, which means that each member must outwardly defend the decisions taken collectively by the Federal Government, even if he personally disagrees with them. This implies that the Federal Government is collectively responsible and accountable for its decisions. It is a fundamental requirement of this Constitution that the moral and cultural integrity of the members of the three state powers - the European Congress, the Federal Government, and the Judiciary - should be beyond reproach. Just as there are requirements under Article II for the competence and suitability of candidates for the Houses of the European Congress, so too for the composition of the Federal Government. One of the worst aspects of the American two-party system is the exchange of top civil servants from the ruling party for others from the other party once it has won the election. It is not called 'spoil' system for nothing because it breaks the continuity of policy and makes the administration vulnerable to corruption in the sense of following 'his masters voice'. In a federal Europe, top officials need to be sure they can do their jobs professionally, not partisanly. It is a merit-system. Explanation of Section 2 – The election of the President and the Vice Presidents Section 2 regulates matters such as the manner of election of the President and Vice Presidents, their term of office, the appointment of a temporary President and Vice Presidents between the period of ratification of this Constitution and the actual functioning of the Federation, the eligibility of such persons and their oath to the Constitution. The European Congress may decide to conduct the election through ranked voting. This is a system - that occurs in various forms, incidentally - whereby voters cast, for example, three votes indicating the order of their priority: 1. Mrs. Johnson, 2. Mr. Smith and 3. Mrs. Peterson. Explanation of Section 3 – The vacancy and end of term of the President and the Vice Presidents Section 3 regulates the manner of filling offices in case one becomes vacant. It also clarifies how to proceed when, in the opinion of the Vice Presidents and a majority of Ministers, the President can no longer be considered capable of holding the office of President. Explanation of Section 4 - Independent oversight of the executive branch: The Ombudsman Office This Section provides for the institution of The Federal Ombudsman Office. Clause 1 takes care of regulating this by law. See Chapter 10 of the ‘Constitutional and Institutional Toolkit for the establishment of the federal United States of Europe’: https://www.faef.eu/wp-content/uploads/Constitutional-Toolkit.pdf. 20 70 Clause 2 regulates The Ombudsman’s Office election. And the people’s influence since the elected persons to serve within The Ombudsman Office come from civil society. Clause 3 ensures The Ombudsman’s’ independence. Clause 4 ensures that the power to give advice to the President cannot simply be rejected or ignored by the Praesidium: The Ombudsman Office is allowed to lay the matter before the European Congress. For both Houses, a two-third majority is required to reject the advice of The Ombudsman Office. Clause 5 regulates an additional power: The Ombudsman Office is authorised to monitor the implementation – by the executive branch - of the reparation of damage caused to the wellbeing of Citizens and to assess its quality. If it is insufficient, The Ombudsman Office may bring the matter to the attention of the European Congress once again. Special explanation on the composition of the Cabinet of Ministers The following is just an example of the possible composition of the Praesidium’s Cabinet of Ministers. The final composition of the Ministries will depend on the outcome of the vertical separation of powers as described in Article III, guided by Appendix IIIA. The Constitution does not determine the size of that Cabinet. It is up the President in consultation with the Vice Presidents. The question we must now address is, "How large should the Cabinet of Ministers of the Federation be?" To answer that question, we would have to consider the dominant executive policy areas that emerge from Article III, Section 2 (the exhaustive list of powers of the European Congress). But we are reluctant to do so. It is likely that such a consideration will only lead to endless debates, drifting away from the requirements of good governance. Especially since not every participating country will have a representative in that government, as is currently the case in the European Commission and the European Council. Federal Ministers are Europeans, serving common European interests. They are not representatives of national governments, serving national interests. The same applies to the civil service within Ministries. Ministries of the Government of the Federation of Europe must have European legitimacy, not national (= member state) legitimacy. In order to open the debate on this, we cut the knot in a simple manner: we follow (not to copy but to give an idea) the policy areas/ministries of the Cabinet of the American President. This concerns fifteen ministers: 1) Minister of Foreign Affairs: in charge of the foreign policy of the Federation. On the understanding that the States of the Federation retain their own foreign policy for their substantive domains, with their own Ministers of Foreign Affairs, as is currently the case in the EU and in the Belgian Federation. 2) Minister of Finance in charge of the financial policy of the Federation. Including the federal budget and federal taxes. Including the supervision of the Fiscal Union we advocate. 71 3) Minister of Defense: charged with the care of the federal army in all its components: namely, land forces, air forces, naval forces, and militias. 4) Minister of Justice in charge of all judicial matters. 5) Minister of the Interior. This American Secretary of the Interior is not comparable to the Minister of the Interior as we often know it in Europe. In this case, it is about the care for the transnational spatial planning, with an emphasis on the care for the preservation of the quality of life. 6) Minister of Agriculture: responsible for agriculture, stock breeding, fisheries, and horticulture, as well as food security (production, distribution, and supply) and food safety (healthy food). 7) Minister of Commerce: responsible for the economy, trade, competition policy and intellectual property. 8) Minister of Labor: responsible for employment and working conditions. 9) Minister of Health and Human Services: responsible for health and social services, including poverty reduction. 10) Minister of Housing and Urban Development: responsible for public housing and the development of urban areas. 11) Minister of Transportation: responsible for all transportation of persons and goods for each mode of transportation between the States of the Federation, including the construction of transnational infrastructure. 12) Minister of Energy: responsible for energy supply and distribution, as well as for the promotion of clean energy and energy saving measures, and the issue of climate change. 13) Minister of Homeland Security21: responsible for ensuring homeland security, combating terrorism within the Federation, and responding to disasters. 14) Minister of Education, Science, and Innovation: responsible for the curriculums meeting required standards throughout the Federation, supporting basic scientific research, ensuring innovation in areas such as electronic traffic, product innovation and the creation of new educational systems. 15) Minister of Cultural Relations and Immigration: responsible for ensuring good relations between the peoples of the member states, for the interests of regions and populations with their own language and culture, and for migration policy. This might be an idea to elaborate on: fifteen federal ministers as members of the Cabinet of the Praesidium of the Federation. And thus, no twenty-seven or more Commissioners to satisfy the national interest or honour of each Member State in the EU. Let alone a European Council. Explanation of Article V – The Powers and Tasks of the Executive Branch Explanation of Section 1 – The President’s and Praesidium’s powers Clause 1 is the equivalent of Article III, Section 1, Clause 2: it is the Praesidium’s responsibility that the policies of the executive branch adhere to principles of inclusiveness, direct democracy, deliberative decision-making, process-steering democracy, and representativeness in the sense of respecting and protecting minority positions within majority decisions, with resolute wisdom to avoid oligarchic decision-making processes. 21 The policy of this Ministry is usually found in Europe in the Ministry of the Interior. But that is not a good formulation. Security is a matter of Homeland Security. Interior affairs are about how that interior looks in terms of spatial planning and infrastructure, in the service of a sustainable life. 72 Citizens can challenge policies they believe do not meet these requirements up to the highest court. Clause 2 places the supreme command of all armed forces and security services in the hands of the President. Clause 2 does not mention militia. There is no place in Federal Europe for para-military and irregular armed forces, which in practice often go their own way. The right to declare war on another country is a power of Congress. Clause 3 gives the Praesidium the power to appoint the offices in the Executive. It appoints the Ministers. As well as the diplomatic staff, government officials and other officials whose appointment is not regulated in any other way. Clause 4 regulates that the power of the Praesidium to seek advice from the Ministers does not apply to military matters, but to everything related to their work. What is important in this respect is that the Constitution assumes in so many words that the Praesidium has Ministers at its disposal. Clause 5 regulates the Praesidium’s power to grant amnesty and pardon, a normal part of any Constitution. However, one cannot leave this to one person, the President. Therefore, this is a competence of the Praesidium. Clause 6 gives the Praesidium the right to make Treaties. But it links this to the duty to seek advice and approval from the European Congress by a two-third majority in both Houses. This provision does not prevent the Member States of the Federation from continuing to conclude Treaties, provided that they do so within the context of their own policy areas. This is due to the vertical division of powers, explained in Article III. This implies that both levels of government can have their own diplomatic and consular corps. For treaties and diplomats, this is already the case in the European Union. The division of tasks between the consuls of each administrative level can be regulated. For example, by declaring federal consuls exclusively competent to assist (commercial) legal persons. In our view, each Member State of the Federation remains competent for its own legislation on nationality and thus helps abroad to physical persons with the nationality of that State. The nationality of a Member State is combined with the Citizenship of the Federation. Clause 7 is the result of Article I, Clause 7 with regard to becoming a member of a World Federation. If such a request is made by such a World Federation to the Praesidium of the Federation, Clause 7 requires the Praesidium to hold a decisive referendum among the people of Europe on the question of whether the Federation should join such a World Federation. Clause 7 also includes the commitment of the Federation to join other federal states in exchanging the treaty-based UN for a federal world government, based on a federal constitution.22 See Leo Klinkers and Mauro Casarotto ‘The San Francisco Promise, Ukraine and UN’s irrelevance’, in Europe Today Magazine: https://www.europe-today.eu/2022/03/23/the-san-francisco-promise-ukraine-and-unsirrelevance/. 22 73 Clause 8 instructs the Praesidium to organize once a year a consultative referendum among all Citizens of the Federation with the right to vote in order to obtain the opinion of the European people with respect to the execution of the federal policy domains. Explanation of Section 2 – The President’s and Praesidium’s tasks Clause 1 deals with the annual State of the Union. This is an executive task that in this European Constitution substantively is assigned to the Praesidium and orally to the President. The Praesidium is supposed to bring forward everything that it considers important. Clause 2 gives the President the right to convene both Houses in extraordinary cases. Without further criteria to be observed. Clause 3 requires all foreign ambassadors to present their credentials in a personal interview with the President. Clause 4 is known in the US as the 'Take Care Clause' or the 'Faithful Execution Clause'. In essence, it is an order to the Praesidium to faithfully execute the laws, even if it does not agree with them. This is not just about execution itself, but also about realizing the intrinsic intentions of Congress: hence the word 'faithful'. This Clause is held in high esteem in the US and is thus also the source of a strong teleological attitude among those in authority and the citizens. An attitude that manifests itself in a high degree of curiosity about "What would the founding fathers of the Constitution have meant? What goals does Congress want to achieve with that provision in that law?" Nonetheless, it is recognised that the US President has broad authority to interpret the intentions of the legislature. But always with the Supreme Court as watchdog, empowered to declare presidential action contrary to the Constitution: "The Constitution is what the judges say it is." Clause 5 gives the Praesidium the power to ensure that all officials of the Federal Government know what their job is. Explanation of Article VI - The Judicial Branch Article VI deals with the third component of the trias politica: the Judicial branch. As mentioned earlier, it is not possible at this time to determine whether all the institutions of the European Union, including the EU Court of Justice, are also institutions of the new Federation. This could be done by applying Article 20 of the Treaty on the European Union: at least nine Member States may enter into enhanced cooperation without prejudice to the internal market (the safeguarding of the customs union, currency policy, competition policy and trade policy). In our view, such an enhanced form of cooperation could take the form of a Federation. In that case, there would be no need to establish a European Court of Justice for the Federation. That Court would then take on that function. If such an Article 20 Federation is not considered an enhanced cooperation, it remains possible for Citizens and States - like the United Kingdom - first to leave the EU (Article 50 of the Treaty on European Union), then to form a federation in its own right, and then to become a member of the EU 74 as a Federation (Article 49). Article X on the ratification process regulates this Article 20 issue. Now first the judiciary with a Federal Supreme Court of Justice, at the top. In our opinion, a system of lower federal courts in the Member States of the Federation is needed below this. We therefore first describe in broad outline what that judicial system looks like in the United States. This is followed by the articles of our draft. As long ago as 1789, the US Congress laid down by law that the federal judiciary would consist of three layers. The first layer is occupied by the Supreme Court. Under it, there are nineteen federal courts of appeal against the judgements of the ninety-four federal district courts below it. In addition, each State has its own courts and thus its own State Supreme Court. The power of Congress to establish lower federal courts implies the power to abolish them as well. In the US, this sometimes happens in the power struggle between the President and Congress, when the majority in Congress is not from the President's party. In order to prevent the President from using his presidential power to appoint judges (after advice and approval from the Senate) only to put party members in such positions, it can happen that the opposition in the Senate blocks these appointments. If such a lower federal court were to be without judges for a long time (because the previous ones had retired or left for other reasons), it would happen that Congress would close down such a court. The US Supreme Court rules in matters of the federal government, in disputes between Member States and in the interpretation of the US Constitution. The Constitution does not give that Supreme Court the right to declare laws contrary to the Constitution in so many words, but in a dispute in 1803, the then President of the Supreme Court established or claimed that power for the Court. This so-called 'Judicial Review' implies the power of the Supreme Court to declare a law of Congress or a measure of the executive branch contrary to the Constitution. The Supreme Court's decision is a precedent for similar cases in the future. The Supreme Court acts as an appellate body to decisions of the nineteen federal courts of appeal. At the lowest level, the federal district courts have jurisdiction in disputes relating to the federal system, and in matters between litigants who do not reside in the same State. Decisions of these courts may be appealed to the nineteen courts of appeal. These federal courts are thus based on Article III of the American Constitution (in our draft Article VI) and are therefore called 'constitutional courts'. The courts of these three tiers have general jurisdiction. They handle criminal and civil cases. In addition to this three-tier structure, there are special courts, for example for bankruptcies (Bankruptcy Courts) or taxes (Tax Courts). However, these have a different status. The Bankruptcy Courts are considered 'below' the district courts and therefore do not fall within Article III of the US Constitution (in our draft Article VI). Their judges are not appointed for life and their salaries can be adjusted. The Tax Courts do not fall under that Article III either, but under Article I, Section 8 (in our draft Article III). It is a so-called 'legislative court'. Note 75 that the US Constitution thus gives Congress the power to establish courts in two places – their Articles I and III; in our Constitution Articles III and VI. In addition to acting as an appellate body, the Supreme Court rules on disputes concerning the interpretation of the Constitution, treaties and matters that affect Ministers or Ambassadors and Consuls of other powers. US federal judges are appointed for life. This means that they remain in office until they die, voluntarily resign, or retire. If they commit a serious crime, they are also subject to the procedure of impeachment. In addition to this three-tier federal judiciary, the US Member States themselves have courts. This makes things rather complicated, because it happens under circumstances that federal courts may interfere in conflicts at the level of a State, and vice versa that courts of a State may rule in disputes of a federal nature. The courts of a State administer justice on the basis of the laws of that State. And thus, also with the procedural law of that State. Each State also has its own Supreme Court. In principle, this Supreme Court of each State is the court of last instance. But in many cases, decisions of that State Supreme Court can still be appealed to the Federal Supreme Court. The State Supreme Court is bound only by interpretations of the Constitution by the federal Supreme Court, not by decisions of lower federal judges. The US Constitution does not specify the number of judges on the Supreme Court. However, for many years it has consisted of nine people: the Chief Justice as the presiding judge and eight others. All are appointed by the President after approval by the Senate. The Court has no separate chambers and always rules jointly, by majority vote. Pleas for the establishment of Chambers have always been rejected by the Supreme Court on the grounds that there would then be more than one Supreme Court. Now to the relevant Articles of our draft Federal Constitution. Explanation of Section 1 – The Courts and the Judges The judges of the Federal Supreme Court of Justice are not appointed by the President, but by a Praesidium of Judges, based on an act by the European Congress. This is to prevent the President – supported by a partisan House of the States - from pushing through partypolitical appointments. It is not the Constitution but this act that determines the number of judges of the Federal Supreme Court of Justice. It is up to the European Congress to decide whether there should be lower federal courts below the Federal Supreme Court of Justice, so-called Constitutional Courts, in addition to and separate from the courts that each Member State establishes itself. The requirement of good behaviour of judges means that they may continue to work until they retire at 75, unless their behaviour leads to impeachment by Congress. This has happened fourteen times in the US. It is also stipulated that their salaries may not be reduced (but may be increased) in order to avoid pressure on their independent judiciary. 76 The phrase 'proper representation from all Member States' in Clause 2 implies that the law of the European Congress referred to here will determine how many judges will sit in courts. So, this Constitution does not fix the number of judges of the Federal Supreme Court of Justice. The evolution of the judicial system of the Federation must be flexible and quickly adaptable by law of the European Congress. Explanation of Section 2 – Powers of the Federal Judicial Branch Section 2 deals with the jurisdiction of the Federal Judicial Branch. The Federal Supreme Court of Justice as well as the lower Constitutional Courts have the power to declare rules and executive measures invalid on constitutional grounds. They may review laws against the Constitution because it is the highest form of law. There has been much debate about this in the US. One can ask the question: “Who is the boss here?” If the legislator makes a law, it applies to everyone. But if a judge considers such a law contrary to the Constitution, that validity falls away. Federal judges (including those lower than the Federal Supreme Court of Justice) can therefore 'overrule' the legislature. Alexander Hamilton, in No. 78 of The Federalist Papers, provided a clarification on this point that to this day stands as the prevailing doctrine: "The interpretation of the laws is the proper and peculiar province of the [federal] courts. A constitution is, in fact, and must be regarded by the [federal] judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental." So, we follow Hamilton in his reasoning that a Constitution is the most fundamental law, of and for the people. Consequently, that law takes precedence over all other laws. This means that the Constitution in the Federation is the judicially enforceable law of the highest order. It is truly ‘a Constitutional Law’, i.e., it is more than a ‘Convention of the Constitution’ or a moral-political agreement that can hardly be invoked in court. In Section 2 the Clause 1b is a peculiar one. In charge of protecting the rule of law throughout the Federation this power of the Judicial Branch is a safeguard against socalled ‘destructive amendments’, as in ‘unconstitutional constitutional amendments’23. Those amendments are not meant to improve but rather to attack a Constitution, either the Federal Constitution or that of a Member State. On the basis of a teleological approach, all See Yaniv Roznai, ‘Unconstitutional Constitutional Amendments: A Study of the nature and Limits of Constitutional Amendment Powers’, PhD Thesis for the Department of Law, London School of Economics and Political Science, 2014. For his book see: https://www.amazon.it/Unconstitutional-ConstitutionalAmendments-Limits-Amendment/dp/0198768796. 23 77 courts of the Federal Judicial Branch determine what is ‘legally right’. This may differ from what is politically considered a good solution to societal problems. If politicians annihilate societal cohesion and thereby cause, among other things, financial-economic problems, which is a common precursor to war on a grand scale, then the Federal Supreme Court of Justice and the Constitutional Courts can prevent them from restricting and abolishing (fundamental) rights and even turning society into a concentration camp. Clause 1b protects the vulnerability of the Constitution against autocratic impulses. Clause 2 of Section 2 provides that for suits to which a Member State or Member States, Ministers, Ambassadors and Consuls of the Federation are the only parties, only the Federal Supreme Court of Justice shall have jurisdiction at first and last instance. This exception to the principle of jurisdiction at first instance and on appeal is dictated by the delicate nature of such litigation, where the immunity from jurisdiction of Member States or officials within and outside the Federation is at issue. With Clause 3 of Section 2, we introduce jury trial in the Federation. At least for crimes specified by law. A thorny issue in many countries. We are familiar with the fierce debates of those for and against this. Our argument for taking this step nevertheless lies in the allimportant element of federal thinking: the Federation belongs to the people. When in doubt about the right way of constitutional and institutional design, it is wise to take the people as the starting point. Therefore, for certain crimes, jurisdiction by a jury, assisted by professional magistrates. Explanation of Section 3 - Powers of the Federal Supreme Court of Justice This Section 3 is dealing with some specific powers of the Federal Supreme Court of Justice. It is a special power to make preliminary rulings on the interpretation of the law at the request of lower courts or individuals. Explanation of Section 4 - High treason and (no) death penalty We assume that these provisions require no further explanation. Explanation of Article VII - The Citizens, the States, and the Federation Explanation of Section 1 – The Citizens Clauses 1 to 3 elaborate on the concept of the Citizenship. The Citizenship of a Member State goes hand in hand with Citizenship of the Federation. As soon as a person possesses the nationality of a Member State, he or she also has federal Citizenship. One receives a single passport, issued by one's own State, stating Citizenship of the Federation. This means that he or she has the federally granted political and other rights and that he or she can also call on its diplomatic or consular services outside the Federation in matters for which they are competent. The latter implies that those federal services must allow Citizens of the Federation, residing outside the Federation, to participate in elections for the House of the Citizens and the President/Vice Presidents. 78 The Clauses 4 to 10 regulate another set of direct and deliberative democracy, in addition to and reinforcing provisions on direct and deliberative democracy, regulated in other articles of the Constitution. They are expressly intended to solve the democratic deficit of the Treaty-based intergovernmental European Union. The Constitution introduces two issues here. First, the right of Citizens to launch a People’s Initiative, among which the right to propose to amend a part of the Constitution. Second, the concept of compulsory and optional referendums. Because this partly concerns possible changes to the Constitution, Article VIII, dealing with changes to the Constitution, naturally also plays a role here. Explanation of Section 2 – The States Clause 1 requires States to recognise the practice of law in the other States of the Federation as of right. Thus, the States do not subject each other's law to evaluation, but let it apply to them. Among other things, this provision avoids administrative burdens for Citizens, administrations and judges concerning the use of official documents. In the Federation, therefore, any requirement for legalization of documents drawn up by a Member State is waived; these documents therefore have legal force in other States of the Federation. Clause 2 means that only the Member States of the Federation have competence in matters of Citizenship with all the political and social rights attached thereto, although the Federation becomes competent for immigration policy. Each Member State recognises the Citizenship of another State and, according to its legal order, treats the Citizens of that other State as its own Citizens. This also implies that all the Member States of the Federation provide help and assistance to each other's Citizens abroad through their diplomatic and consular services where necessary. Clause 3 provides for the conditions to be fulfilled by States who want to accede to the Federation. Clause 4 rules that leaving the Federation is possible, provided the leaving Member State follows the same procedure as indicated in Clause 3. Clause 5 makes clear that the States, acceding to the Federation at the moment of the ratification of the Constitution, are freed from their debts. Under a federal tax system, complemented by a Fiscal Union, they start their lives as Member States of the Federation with a clean financial slate. Under a federal tax system, complemented by a Fiscal Union, they start their lives as Member States of the Federation with a clean financial slate. This does not apply to States that register as members of the Federation after it has been established and has entered into force. Those States retain their debts and must apply the federal rules in force from the time of their accession. Clause 6 rules that any change in the number of Member States of the Federation, by merging or splitting States, shall be submitted to the Citizens concerned, to the Parliaments of all the States and to the European Congress. The reason for these various authorizations is that they alter the balance of power between the Member States and within the Federation, institutionally for example, by affecting the composition of the House of the States. This provision is important for regions with activist groups that aspire to establish their own 79 state, such as Catalonia in Spain, Corsica in France, Flanders in Belgium, and Scotland in the United Kingdom. Clause 7 provides for extradition of suspects between Member States as the flip side of the free movement of persons in the Federation. Clause 8 reaffirms the principle of prohibition of slavery and forced labour. Explanation of Section 3 – The Federation Clause 1 emphasizes the guarantee that the Federation secures a representative democracy for each Member State and that it will protect them against an invasion and against internal violence. That it is a centripetal constitution underlines the potential of this type of constitution - unlike a centrifugal/devolved constitution - to ensure diversity. Clause 2 stresses - as an explicit aspect of the vertical separation of powers of this centripetal federation – that the Federal Authority does not interfere with the internal order of the Member States, but rather ensures the unconditional application of the rule of law throughout the Federation. A federal state is not a supranational state of which hierarchical decision-making is a feature. Explanation of Article VIII - Changing the Constitution Article VIII balances between the harshness of the original 'Articles of Confederation' (17761787) which, with its unanimity requirement, did not allow for much, if any, amendment of the Confederal Treaty, and an overly soft application of majority decisions that - under the pressure of the political frenzy of the day - would introduce constant changes to the Constitution, making it unstable. This Article VIII, therefore, tries to safeguard the fundamental character of the Constitution, but at the same time to offer room for the need to adapt, from time to time, that basic document of an organization such as the Federation Europe to changed circumstances and changed insights. Explanation of Article IX - Federal Loyalty The first Clause of this Article makes it clear that the Constitution, together with federal laws and treaties, constitutes the fundamental law within the Federation and that everyone has to comply with it. Also, the judges of the Member States. State law - whether in a State Constitution or in state laws and regulations - may not conflict with the federal Constitution. So, trying to 'nullify' a federal law in a state law is not possible. For the rest, the States are free to make the laws they see fit, provided that they comply with the rule of law. In order to ensure that respect for the Constitution is observed, the second Clause provides that those in positions of responsibility must take an oath or pledge, which, incidentally, exempts them from an enquiry into their religious beliefs. Explanation of Article X - Ratification of the Constitution For the Federation to enter into force, the federal Constitution must first be ratified. This is a matter and task for the Citizens of Europe because it is a Constitution of, by and for the 80 Citizens. Their ratification is an endorsement - a confirmation - by which the Constitution becomes binding. It is up to their national parliaments to follow the ratification by their Citizens in accordance with the provisions of their national constitutions. Participation in this ratification process is open to all Citizens with the right to vote - from all the states of Europe. So, also to Citizens of states that are not members of the European Union. By putting the ratification in the hands of the Citizens, we are following the procedure of the ratification of the US Federal Constitution between 1787 and 1789: it is about the application of the most basic right of the Citizens, based on the adage: "All sovereignty rests with the people". This Article X provides for two possible federations. If the citizens of all the EU Member States ratify, the Federation will replace the European Union. If not all Member States ratify, a federal Europe can nevertheless be established on the basis of Article 20 of the Lisbon Treaty's partial treaty, the Treaty on European Union. Article 20 gives at least nine Member States the power to organize a form of enhanced cooperation. Since the concept of enhanced cooperation is not further qualified, it can take the political form of a federation. The organization of this ratification process will gradually become clear. Acknowledgements Well then, this is the conclusion of the Constitution for Europe by the Federal Alliance of European Federalists (FAEF). Only ten articles, bearing in mind Napoleon Bonaparte's 1804 statement: "The best constitution is the concise and pithy one." It offers Europe the strength to leave the era of erroneous treaties behind, making the leap to a new European State system, that of a federal state, the best form of state when sovereign countries want to cooperate in peace, while preserving their own cultural identity. This leap is perhaps what former EU-Commission President Romano Prodi meant in 2000 when he said: "Great reforms will make a great Europe." Speaking about great reforms, let us recall once again that the Philadelphia Convention as early as 1787 preceded Prodi's statement by committing three daring steps out-of-the-box. Firstly, by disobeying the mandate – giving by their Confederal Congress - to amend the Confederal Treaty. Instead, they threw away the treaty and designed a Federal Constitution. Secondly, by submitting that Constitution not first to the Confederal Congress for ratification, but to the Citizens of their thirteen States through a system of electoral delegates. Thirdly, they ignored the requirement of unanimity: if the Citizens of only nine States agreed, the Constitution would enter into force. Three steps out-of-the-box. A great reform: the birth of the federal state-system; in 2022 no less than 27 federations house over 42% of the world’s population. 81 What was realised in America, creating an authority that encompasses them all as a remedy for degenerating conflicting fragmentation - from which Europe suffers since centuries Europe is only now about to achieve. More than two hundred years and many devastating wars later. We can be annoyed by it. Better to be glad that it finally seems to be happening. And that we are ready for it. That is why FAEF Board is very moved by the work that FAEF’s Citizens' Convention24 has done from October 2021 to April 2022. Our Convention, modelled on the Philadelphia Convention, has, as a six-months peer review, significantly improved a previously drafted centripetal federal Constitution of ten articles. Making it a powerful document of which we are extremely proud and grateful to the members of the Convention. No European state can reasonably dispute the correctness of this federal Constitution: it does not threaten any existing right or interest of any state but places the responsibility for Common European Interests on the European level, in order to meet global challenges for ensuring peace, security and prosperity. The fundamental strength of our federal Constitution is the principled choice to base the care of European interests on a bottom-up democratic Constitution of, by and for the Citizens of Europe. Finally this. The ratification of this Federal European Constitution is a task and a matter for the Citizens of Europe. Not of the current European Parliament, not of the European Council, not of the European Commission. It is only a task of the national Parliaments after their Citizens have spoken: ‘All sovereignty rests with the people’. Those who doubt whether there is support for such an approach may be convinced by the following quote from the Berlin Europe speech by Germany’s Federal President Joachim Gauck on 22 February 2013: "Ohne die Zustimmung der Bürger könnte keine europäische Nation, kann kein europäischer Staat wachsen. Takt und Tiefe der europäischen Integration werden letztlich von den Europäischen Bürgerinnen und Bürgern bestimmt. ... Was Europa jetzt braucht, sind keine Zweifler, sondern Fahnenträger, keine Zauderer, sondern Menschen, die bereit sind, zuzupacken, nicht die, die einfach mit dem Strom schwimmen, sondern aktive Mitspieler... Mehr Europa heißt für mich: mehr Europäische Bürgergesellschaft." In English: "Without the consent of the Citizens, no European nation, no European state could grow. The pace and depth of European integration are ultimately determined by the European Citizens. ... What Europe needs now are not doubters but flag-bearers, not laggards but people who are ready to get stuck in, not those who simply go with the flow but active players.... For me, more Europe means more European Civil Society". With this message we offer our Federal European Constitution to the Citizens of Europe. It is up to them to decide on it. 24 The members of the Citizens’ Convention who did this remarkable work are here listed. 82 *** 83 3. IN-DEPTH STUDIES The Memorandum of Explanation did not provide enough space for members of FAEF's Citizens' Convention to write down their underlying thoughts on parts of the Constitution. In order to accommodate them, it was decided to write a collection of in-depth studies. Some members of the FAEF Board were pleased to participate. These studies are divided into the following sections: o About fundamental aspects on federalizing Europe. o About federal constitutional law-making. o About numerical representation, requirements for the political office and citizens’ participation. o About common interests. o About emerging federations. o About the alfa and omega of federalism. The sections together contain fourteen studies. 84 ABOUT FUNDAMENTAL ASPECTS ON FEDERALIZING EUROPE This collection of in-depth studies opens with three contributions. They have been chosen not only for their fundamental significance for standard elements of federal state formation, but also to do justice to the place these three authors occupy in their drive to support the establishing of a federal Europe by a federal constitution, to replace once and for all the EUtreaties: o Herbert Tombeur and Leo Klinkers as co-authors of the European Federalist Papers. o Mauro Casarotto as one of the bearers of the adage 'Federating the Federalists', the basis for founding the Federal Alliance of European Federalists. o Together in different positions cooperating within the Federal Alliance of European Federalists. Tombeur describes in general terms the building blocks of federalism in a context of different types of federations, with their assets and handicaps. Klinkers addresses one of the issues involved in building a federation, namely the choice between centripetal or centrifugal federalizing. Against that background he explains why the Federal Constitution of Russia is extremely flawed, giving the Russian President all powers to place himself above the rule of (international) law. Casarotto discusses the post-war thinking and handling on the federalisation of Europe, taking the federalist ideas of Altiero Spinelli as its basis. Explaining also why and how EUpolitics abandoned Spinelli's heritage. 85 Definition and Value of Federalism Herbert Tombeur Co-author European Federalist Papers, ttc@tombeurcouncel.eu I. The Development of the Theory on Federalism The “father” of federalist theory is Johannes Althusius or Althaus (1557-1638). His work, dating from 1612, which describes society, is close to the theory on federalism. In his view, the basis of society is the contract: coexistence, cooperation and a respect for the autonomy of every group. A union presupposes compromise achieved by communication. Therefore, this is a “bottom up” vision of society in the state. The work, “De statu regorum Germania” (1661), by Ludolph Hugo follows on from Althusius’ work. In addition to confederations of states and decentralised states, he also describes federal states. These are states which have a “double” government. Sovereignty is divided, but there is no hierarchy between the levels of government. The Holy Roman Empire of the Ger man nation or the German Empire certainly had an autonomous government at two levels at least: one at the level of the Empire as a whole, ruled by the emperor, the other at the level of the principalities, in which some of the heads of state elected the emperor. In his work, “L’esprit des lois” (1748), Charles-Louis de Montesquieu submits that a federation has advantages for some regions: small states cannot split up into smaller entities, and large states have the power to defend themselves, protect their interests against external threats, and have more funds from taxation. Federations provide advantages of both kinds of state. II. Definition of Federalism The American political scientist, Preston King, defines federalism as “an institutional arrangement, taking form of a sovereign state, and distinguished from other such states solely on the fact that its central government incorporates regional units in its decision procedures on some constitutionally entrenched basis”. In his view, the constitutional basis of the whole construction (the federation), the autonomy of the composite parts (territorial or functional) with their own decision-making power (“self-rule”), and the participation of those parts in the decision making of the whole structure (“shared rule”), are the essential characteristics of a federal system of government. Federalism as such is a government structure which does not have to be state-based or public. The political scientist, Daniël Elazar (who died in 1999), emphasizes that federalism can be measured in any type of organisation. It is a matter of the level of autonomy of the parts and of the whole, and of cooperation on an equal footing, compared to the degree of hierarchy, while the organisation of government cannot be unilaterally modified either by the whole (the federation), or by (one of) the parts (federated states). This organisation can 86 be either a federal state,1 or a part of a state, e.g., the internal organisation of a federated state in a federal State, or a public institution with functional and/or territorial autonomy, an international institution, or even a private organisation. Therefore, the concept of federalism has a broader scope of ap plication than the state. The typical characteristics of federalism can be summarised as follows: 1. autonomy of the federated areas (“self-rule”) 2. the autonomous operation of the whole, the federation 3. participation of these areas in the federal decision making (“shared rule”). These characteristics entail autonomy and solidarity. However, the core of federalism itself consists of a completely reciprocal agreement between independent governments, in which they agree that they form a whole so that certain powers can be exercised by institutions acting on behalf of that whole. This contract is absolutely reciprocal in the sense that it can only be amended with mutual consent, both by the composite parts and by the whole. This agreement can only be cancelled if all, parts and the whole, agree. A new agreement between all the governments is therefore required for a change in the relationship between the individual parts, or between the parts and the whole. This means that a change to the contract can only be introduced by all the parts and the whole; this applies both for a change in the balance of power between the individual parts, or between them and the whole, and for the accession to the whole, the exclusion or the secession from it. Therefore, federations are not distinguished from other forms of states by a hierarchy between the federal and the regional regulations (e.g., Germany: the rules are drawn up federally, implemented regionally) or by competing powers (these can also be found in states with a single level of government), or by the method of decision making (by consensus or with a majority), or by the centre of gravity of the balance of power – the greatest or most important power can be exercised both federally and regionally, but there is always a sort of federation if the basic political agreement (constitution) is completely mutual. Obviously, those characteristics form parameters against which the level of solidarity can be measured. A federation in which many decisions are taken by a majority of the composite parts with a majority shows that there is a link between those members which is stronger than that of a federation in which these decisions of the parts have to be taken by consensus, say unanimously. The decisions for the whole must always be taken by an institution which represents the whole. If not, there is not a federation. The way in which this is done only reveals the degree of connection, i.e., the strength of the federation, or, in other words, solidarity. Therefore, a federation differs fundamentally and essentially from other forms of organisation, because of this absolute reciprocity of agreement when the balance of power is changed. 1 According to the philosopher, Max Weber, a state is any organisation which can legitimately exercise violence, in or for a particular territory. This violence is exercised by the police and military services. The political scientist, Giandomenico Majone, submits that a state is any organisation which acts in a regulatory manner (“the regulatory state”). 87 This is what distinguishes a federation from a confederation. A confederation is a reciprocal agreement between governments, usually states, which can be unilaterally terminated by one of the members. A confederation creates a similar bond to that in a marriage or other forms of personal relationship: they are both based on a reciprocal agreement but can be terminated unilaterally. The confederation derives its power solely from its members. It does not have any power from itself, and therefore does not have its own “sovereignty”, because the whole is not represented as such. The whole only exists as the sum of the parts. The concept of confederal ism is usually used for the establishment and the operation of international organisations. Therefore, the main distinction between a federation and a confederation lies in the basis of their unity: a federation has a completely reciprocal basic act (constitution), while a confederation has a contract (treaty) which can be unilaterally terminated. Federalism also differs from decentralization. A government structure is decentralized if the central government unilaterally gives power to institutions which can then independently use the power delegated to them. However, the central government can always unilaterally with draw this power. Furthermore, it exercises a certain form of supervision on the decentralized institutions. Therefore, a federation differs essentially from other forms of government because of the specific permanently mutual division of the highest power, i.e., of the sovereignty between the parts of the whole and the whole itself (the federation). In a federal organisation there is no double sovereignty because this would mean powers completely separate from each other, but a divided, shared sovereignty (“sovereignty sharing”). The two levels of government, the federal level (the whole) and the regional level (the parts), each independently exercise a part of this sovereignty (both are autonomous within their respective powers), and this autonomy can only be changed with the reciprocal agreement of each government concerned. Furthermore, the federated states also participate in the decision making in this capacity at the federal level. Sovereignty is divided in a federal state system but is also complementary. This means that it does not go so far that the federation can abolish a federated state, or that a federated state can secede from the federation without the agreement of the federation and of the other federated states. After all, the essence of a federal state system is that the survival of the federation and of its parts is guaranteed: the termination or a change in its composition or balance of power is permitted only with mutual consent at the federal and regional levels. III. Types of Federal States Federal states are very different in terms of organisation. There are almost as many types of federal systems as there are federations because every federation has its own character. Nevertheless, it is possible to classify federal systems in four different ways, depending on the criterion used for distinguishing them, based on the distribution of the power of government it self or on the competences in terms of content. 88 Usually, the double government develops on the basis of cooperation (federalisation) between autonomous areas or even independent states, i.e., from the “bottom up” (e.g., USA - “e pluribus unum”, Canada, Switzerland), but this is not necessarily the case. The reverse “top down” situation, or the de-federalisation2 of a centrally governed state into a federal state, also occurs (e.g., Belgium, Czechoslovakia after the Second World War). This difference in the political process of the creation of the federation usually has an effect on the type of federation: federalisation is aimed at solidarity and is consequently centripetal, while de-federalisation aims to ensure the recognition of identities and is therefore centrifugal. That is why federations which develop from the bottom up aim at cooperation, while federations which develop from the top-down aim at autonomy. A distinction is made between jurisdictional and functional federations. The distinguishing criterion is whether or not the three horizontal powers are united at a single level of government, viz., the legislative power, the executive power and the judicial power. In jurisdictional federations, two or three powers are united at every level, both the federal and the regional level. Therefore, there is less policy-related dependence between the two levels of government. This is the case in Australia, Belgium and Canada. In functional federations these powers are spread across the levels of government to a great extent. This means there is a great deal of mutual dependence in governmental affairs. Germany, Austria and Switzerland are functional federations. In terms of the autonomy of the funds, a federation can also be classified as having a character based on autarchy or solidarity. In this respect, the criterion is the degree of financial autonomy of the levels of government. The federation is autarchic if both levels are predominantly autonomous in terms of income and expenditure. This is the case in Germany. A federation is characterized by solidarity if the federation collects most of the funds and divides them amongst the federated states. Belgium is a state characterized by a high degree of solidarity (only 25% of the regional income is directly collected). Canada has a central position: approximately 45% of the provincial income is collected by the provinces themselves. Federations can be organised in an exclusive or competitive way. They are distinguished by the degree of separation between the policy areas measured in the distribution of powers across the two levels of government. In other words, it is examined whether there are many or few policy areas in which both levels are competent. In exclusive federations, most of the policy areas fall wholly or predominantly under one level of government, either the federal or the regional level. This means that the federal and regional rules are rarely in competition with each other and consequently there is little need for a hierarchy between the federal rules and the regional ones, or for another juridical solution. This is the case in Belgium, where many areas are wholly or virtually wholly assigned to a particular level of government. On the other hand, in competitive federations, most policy areas are spread across both levels of government. This is the case in Switzerland. 2 To federate (federalism, federation, federal) means to unite, connect, because the word is derived from the Latin word “foedus” (gen., “foederis”). This means union, agreement or cooperation. To refer to the reverse process, viz., dissolve, separate, it is possible to use words such as “defederalise” or “defederalisation”. 89 A distinction can also be made between inter-state and intra-state federations. For this, the criterion is the type of organisation of the dialogue and any cooperation which takes place between the federation and the federated states, and between the federated states themselves. Inter-state federations use so-called intergovernmental conferences with representatives of both levels of government as the most important forum to reach joint decision making. This is the process in Belgium and Canada. Intra-state federations aim at joint decision making with institutions which are either federal or regional. For example, in Germany the representatives of the two levels discuss and decide together in a parliamentary chamber of the federation (the “Bundesrat”). IV. Assets and Handicaps of a Federation A federation has at least two different levels where the independent exercise of power is guaranteed. This is one level more than in a unitary state, which may or may not be decentralized. There are at least three autonomous centers of power, and different legal systems, two at the regional level of government and one at the federal level. This is at least two more than in a unitary state. This means that the federal system necessarily has a specific influence on the way in which society works, in a social and political sense. The question is whether this influence on social life and on the political forum is positive or negative, or both, and to what extent this is the case. 1. Division of powers A federation by definition entails the distribution of the highest power or sovereignty between the federal level of government and that of the federated states. Therefore, there can be no monopoly of power in a real federation. After all, there are at least three centers of power in a federal state. Consequently, federalism and dictatorship are mutually exclusive, because dictatorship in a state by definition entails a monopoly of power. A federal dictatorship is a contradiction in terms. At best, a dictatorship can allow decentralization. A unitary state can be a dictatorship, and vice versa, but a true federation can never be a dictatorship. Therefore, federalism excludes a dictatorial type of government. At least three centers of power must be able to decide and act independently of each other up to a certain degree. In some cases, the centers of power will have to negotiate with each other so that the federation as a whole can be governed in a coherent way, and they will have to cooperate in order to carry out cross-border or joint projects. Therefore, it is not enough for a state to have a constitution with a federal organisation to be viewed as a federation. There will always have to be a political examination to see whether there are three or more autonomous centers of power in a particular state. In this way, federalism promotes the ability to negotiate and make compromises, because the cooperation and coordination between these equal partners are inevitable in a federation. Even if the joint decision ultimately does not meet the maximum requirements of some of the parties, the confrontation and participation in the dialogue will still result in 90 greater solidarity than a solution which is imposed from the top down by a central institution which does not take its regional implications into account. The indisputable and universal asset of a federation is that it presupposes a minimum of democratic (oligarchic) governance. No true federal system can develop or survive without achieving and maintaining this vertical division of powers between two levels of government. This political and juridical division of power serves as an obstacle to the concentration of power which is needed to establish a dictatorship. The absolute reciprocal guarantee for the autonomy of the federation as a whole, and of the individual federated states, means a strong base for maintaining any joint decision making by consensus or by majority rule, i.e., with a democratic standard. 2. Decisions at a shorter distance By definition, federations have at least one level of government more, closer to the citizens, than centrally governed states. This also promotes the capacity of the government to respond: the lower the level of decision making, or at least, the closer the participation in the decision making is to the tasks to be carried out, the greater the chance that the challenge will be tackled rapidly. Obviously, this faster response does not necessarily improve the quality of the execution. However, research has shown that the population more readily entrusts its regional problems to regionally elected representatives than to those of a distant political centre. The proximity of the citizens and of the activities to be carried out at a regional level is the benefit of a federal system. 3. The accumulation of identity and solidarity Federalism certainly results externally in a “win-win” situation for both the parts and the th whole, as Montesquieu indicated in the middle of the 18 century: as a federation, the federated states are stronger than each of them individually, and at the same time the federation guarantees the federated states a degree of autonomy (shared sovereignty). States which claim their identity and justify their existence on the basis of differences in language, religion, culture, economic structure etc., retain their autonomy to a certain degree, while at the same time they form a whole to combine their funds and their instruments so that all can be stronger together in joint projects and in relation to other states outside the federation. There certainly is unity (solidarity) in diversity (identities). Federalism provides a structural solution for some conflicts between culturally diverse states, or in such a state which is centrally governed. After all, it means that there is a structural agreement (mutual contract, constitution) which has been entered into voluntarily between politically equal parties. On the one hand, the existence of the federated states is guaranteed by that constitution and, on the other, the states surrender some of their sovereignty to the whole, the federation. Any federal system is a balanced compromise which works in a completely reciprocal way. On the one hand, it means that the federated states cannot unilaterally revise this surrender from sovereignty, while on the other hand, the federation cannot use the level of sovereignty it has been granted to change or withdraw the level of sovereignty of the federated states. The federation also guarantees a certain degree of solidarity between the parts. 91 4. Competition between governments The functioning of the federal government and the federated states also results in a degree of competition between the federal level of government and that of the federated states, and between the governments of the federated states themselves. The dynamic character of the governments is promoted by the competitive structure of federal and regional autonomy: the most effective and efficient government benefits power and prestige. A centrally governed state cannot provide as much experience and consequently learning processes and standards. In fact, it has a monopoly of power. This does not apply exclusively with regard to economic parameters. It also concerns problem solving creativity in other policy areas, such as education, welfare and safety. This is obviously the case in competitive types of federations, but the stimulus of policy related competition can also play a role in exclusive systems. Although policy areas are clearly exclusively divided over the levels of government, they can still give rise to competition between governments. They can even be complementary. The result achieved by one federated state in a particular policy area can certainly serve as an incentive for another federated state to achieve a similar result with the same or other instruments. For example, this is the case in Belgium in the fields of education and the economy. Are there no handicaps in a federal state structure? Of course, there are. 5. Diversity of rules A centrally governed state makes it easy for its subjects to determine which institution or which governing body makes the rules and which is competent to execute them and is there fore liable for which measures. In a federation this is certainly more complicated. There is a diversity of rules because there is a division of power between the federal level of government and the governments of the federated states. In a federation the legal position of the citizens differs in the different federated states. Citizens have to deal with different legal systems, depending on whether they perform legal acts in two or more federated states. Moreover, if they move to a different federated state they are confronted with different rules. This applies for education in Germany and for a number of taxes in the USA. Nevertheless, a survey of public opinion has found that citizens prefer to maintain the political organisation of their regional identity in a federation to the transition to a centrally governed state system. For example, research in Germany since 1949 reveals that the federal system is increasingly accepted, despite the significant and long-term migration from East to West. Furthermore, this diversity of rules can also be found in many unitary states because most are decentralized to a certain extent, also in a territorial sense. 6. Complexity of government A federal state structure has a number of equally autonomous levels of government, and at least one level of government more than another system. Therefore, it is more complex for 92 those in government. This situation is specific for federations because decentralization means unequal partnership. A federation leads to additional institutions to operate the whole organisation of the state, in comparison with a unitary state. For example, specific institutions are needed to coordinate policy, for cooperation and the settlement of conflicts between the federal and the regional level (e.g., ministerial conferences, courts of justice, etc.). However, the savings made by the federation compared to the wholly sovereign and independent existence of the federated states must be deducted from the extra expenses incurred by this. Those different levels of autonomous government (viz., regulatory powers, their elaboration, implementation and control) require deliberation before and after the decision making in those levels of government, and this is not necessary in a centrally governed state system. This need for concertation is the inevitable consequence of the existence of the various centers of power side by side, although they form a whole as a federation. For some policy matters, both horizontal coordination and cooperation between the federated states themselves remain necessary, as well as vertical coordination between them and the federation with its own powers, e.g., areas which have a cross-border impact in a literal or figurative sense. 7. Lack of transparency of government Political, financial and economic tuning of policy between the various centers of power re quires an extremely intense dialogue, close cooperation and far-reaching co-funding between the levels of government, particularly with regard to the economic development of the federated units. The series of intergovernmental conferences and the network of reciprocal agreements under pressure of joint objectives and a lack of means, can lead to a hazier political li ability in the eyes of citizens. This lack of transparency in decision making can weaken the legitimacy of the federal system, i.e., its acceptance by the citizens. Consequently, it is important to clearly identify the liability for the decisions. Usually this is not so easy in a federation, but it may be difficult in other state systems as well, for two reasons. Compromises of any nature between governments presume the partial responsibility of all the participants in the decision-making process. Furthermore, it is a fact that the leading role of administrations in the development of the intergovernmental dialogue and the network of agreements do lead to less transparency. In fact, the permanent need for policy coordination and cooperation between governments strengthens the position of administrations at the expense of parliaments. It is easier for ministers and their experts to use diplomacy and act in a fast and flexible way than for parliaments to do so. This challenge to legitimacy is acute in the European Union at the moment, but it is also latent in established federations. In unitary states this transparency of government appears to be higher for citizens. However, centrally governed states are faced with a different handicap in the field of liability. In fact, this liability becomes even more confused and is more disputed as the distance between the social problem and the policy increases. As indicated above, the distance between both is inversely proportional to the speed with which the problem is discovered and tackled. 93 Evaluation The indisputable and universal advantage of a federation is that it is incompatible with a dictatorial government. No federation can really work without a (vertical) division of power. Furthermore, a federal state system has a regional (additional) level of government which is closer to its citizens. It combines the benefit of greater cohesion, an enlargement of scale, with the asset of smaller societies in which the cohesion cannot easily disappear. Another general advantage of a federal system is the spirit of competition between the levels of government. This competition can never be as open and fair in a centrally governed state, even if it is decentralized. Indeed, decentralization leads to various functional and territorial monopolies, side by side. However, the complex and confused decision making in federations is often blamed for stir ring up conflict and wasting when the problems should be tackled. This can be the case in federations, where the two levels of government obstruct each other for a long time, or where the division of power is complicated. However, these problems occur just as much in centralized states, as in a dispute between houses of parliament or between parliament and the head of state, e.g., in presidential state systems, such as France (“cohabitation”) and the USA, where different political parties can dominate the different institutions. Those handicaps in terms of complexity regarding the decision-making process, as well as the diversity of rules, are not actually found to the same extent in all federations. Their significance depends on the specific organisation of the federation concerned, and the sociocultural situation in the country concerned, in particular the type and the number of cleavages in society. After all, federations can be divided up along socio-cultural lines, into the category of “uniform” (homogeneous) or “diverse” (heterogeneous) federations, just like states organised in a different way. The number of federated states and the way in which power is divided equally determine the significance of the negative factors, such as diversity, complexity, lack of transparency and in efficiency. The extent to which the democratic assets of federalism weigh up against those social and political costs seems to depend on the number of federated states. If there are too many, the need for interaction can hinder the democratic and federal processes too much; if there are too few, decision making can be obstructed or delayed as the result of a stalemate. A simple division of competences can limit the handicaps, as well as the operating costs of specific institutions such as deliberation bodies and courts of justice. The degree of shared powers and competitive powers determines the diversity and the complexity for the rulers and the citizens. One convincing argument pleading for a federal state system in many cases concerns the institutional developments in a number of countries. Federations which were established from the bottom up, such as the USA and Switzerland, do not change into states with a central government. Countries which restored a federal tradition, such as Germany and Austria, do not do so either. On the contrary, unitary states become federal, regionalized or decentralized states. In Western Europe this is increasingly the case. Examples of this can be found in Belgium, Italy, Spain and Great Britain. Even in France, there is a form of regional 94 autonomy on the political agenda, particularly with regard to Corsica. Apparently, the social cost of the difference in government does not counterbalance the benefit of the political recognition of regional identities. The diversity of political centres is even seen in federations as the necessary and safest protection against the excessive uniformity imposed by a single centre of power. Bibliography Alen, André, Beaufays, Jean & d’ Alcantara, Gonzales, Federalisme: staatkundig, politiek en economisch, Maklu, Antwerp, 1994. Aubert J.-F., Mueller J. P. & Thuerer D. (eds.), Verfassungsrecht der Schweiz - Droit, 2001, Blindenbacher R. & Ostien A. (eds.), Dialogues on constitutional Origins, Structures & Change in federal Countries, vol. 1, Dialogues on Distribution of Powers and Responsibilities in federal Countries, vol. 2, 2005. Burgess, Michael, Federalism and Federation in Western Europe, Croom Helm, London, 1986. Burgess, Michael & Gagnon, Alain G., Comparative Federalism and federation: competing Tradition and future Directions, Harvester Wheatsheaf, London, 1993. Davis, S. Rufus, The federal Principle, a Journey through Time in Quest of a Meaning, University of California Press, London, 1978. Deschouwer, Kris, De consequenties van “multi-level governance”, in: Res Publica, Leuven, 2001. Elazar, Daniel J., Exploring Federalism, University of Alabama, Tuscaloosa, 1987. Friedrich, Carl, Trends of Federalism in Theory and Practice, Praeger, New York & London, 1968. Gagnon, Alain G. & Tully, James, Multinational Democracies, University Press, Cambridge, 2001. Griffiths, Ann L. (ed.), Handbook of Federal Countries, Forum of Federations, McGill-Queen’s University Press, Montreal & Kingston, 2002. Hesse, Joachim J. & Wright, Vincent, Federalizing Europe? The Costs, Benefits and Preconditions of Federal Political Systems, Oxford University Press Inc., New York, 1996. Kavalski E. & Zolkos M. (eds.), Defunct federalisms, Critical Perspectives on Federal Failure, 2008. Lijphart, Arend, Patterns of Democracy: Government Forms and Performance in thirty-six Countries, Yale University Press, New Haven, 1999. King, Preston, Federalism and Federation, Cass Ilford, 1999. Tombeur H., Federalisme, federaties en Europese Unie, in: Internationale Spectator (Clingendael), 2004. Watts, Ronald L., Comparing Federal Systems, McGill-Queen’s University Press, Kingston, 1991. 95 Unitary Aspects of Centripetal and Centrifugal Federations and the source of Putin’s autocratic behaviour Leo Klinkers Co-author European Federalist Papers, Co-founder and first President of the Federal Alliance of European Federalists, leo@faef.eu Introduction1 In the summer of 2021, FAEF decided to organise its own Citizens' Convention. It was a response to the decision of the European Union in 2021 to organise - after twenty years another Conference on the Future of the Europe. The EU Conference's motive to use the result - expected in 2022 - to change the EU treaty system once again was FAEF's reason for organising its own Citizens' Convention. As a counterbalance to the EU’s undemocratic structure and ineffective policies. The fact that EU’s treaty-based intergovernmentalism is unable to protect Europe from rising autocratism2, from the increasing number of internal conflicts, or to give Europe a meaningful geopolitical position is once again obvious. The EU is a system of states that has no stronger basis than its own limitation. This limitation lies in the fact that the EU is merely an accumulation of national interests and is therefore no more than the sum of its parts. Because these parts do not form a whole - indeed, they do not want to form a whole - they are as a state system inferior to a federal Europe. The yardstick for well-founded criticism of that state system is the degree of democratic accountability. That yardstick is determined by science. Not politics. Denying this gives a state system room to autocratise. After which autocracy itself determines the standards and rules for filling the democratic void with evil. Only a federal constitution for Europe, which has been sought in vain for 200 years, offers a democratic solution for the parts becoming a whole. And it would be saving the EU's identity crisis. Over the years, many publications have appeared on the undemocratic nature of the European Union. Too many to quote. We make an exception for the opening of an article – Totally dysfunctional: Sophie in ‘t Veld on the EU’s relationship with democracy - in the Guardian of 27 April 2022, written by Jennifer Rankin, dealing with statements made by the Dutch MEP Sophie in 't Veld. The first two paragraphs read as follows: “Even by the standards of the plain-speaking Dutch, Sophie in ‘t Veld is pretty blunt. The European Council – the body of EU leaders – is “from a democratic point of view, a monster” and “totally dysfunctional”, she says. The European Commission is “shamelessly protecting” Previously published – in a shorter version - in Europe Today Magazine, 1 April 2022: https://www.europetoday.eu/2022/04/01/unitary-aspects-of-centripetal-and-centrifugal-federations-and-the-source-of-putinsautocratic-behaviour/. 2 See Gábor Attila Tóth, ‘European Constitutional Ideas and the Rise of Authoritarianism’, Conference Paper, European Constitutional Democracy in Peril: People, Principles, Institutions, ELTE Budapest, University of Exeter UK, Budapest, 23-24 June 2016. 1 96 autocratic governments, over enforcing the rule of law. And the European parliament, the veteran MEP thinks, “is not playing its role within European democracy”. While EU leaders have applauded the unprecedented speed of EU sanctions against Russia, taboo-breaking decisions to fund lethal weapons for Ukraine and help Ukrainian refugees, in ‘t Veld thinks the war has only exposed the EU’s “dysfunctional” governance, a complex patchwork of institutions where national governments are ultimately in charge. “I very much welcome the fact that the European Union is now taking steps [to support Ukraine], that there is more integration; I think that is long overdue, but that also increases the need for a more democratic union,” she told the Guardian.” The FAEF Citizens' Convention of 70 members - European and World Federalists including professors, journalists, thinkers and writers on a federally united Europe - examined a draft ten-article democratic federal constitution of, by and for the citizens of Europe, previously conceived by Leo Klinkers and Herbert Tombeur in their European Federalists Papers (20122013). In the style of work of the Philadelphia Convention of 1787, the birth of the world's first federal constitution, from October 2021 and April 2022, the Convention improved the original draft into a comprehensive but compact federal Constitution that offers security, prosperity and solidarity to a federal Europe. FAEF will present this Constitution - intended to break through the wall of political cognitive dissonance concerning the only way one can build a federation, which is through a constitution - to the people of Europe in the course of 2022. This study deals with one of the central aspects of the construction of federal constitutions, namely the difference between a centripetal and a centrifugal federal constitution. Ending with a reflection on the system error that reduces the value of the Russian federal constitution to zero by placing the Russian President above the law. The difference between centripetal and centrifugal federations There are currently 27 federal states that together accommodate slightly more than 42% of the world's population. The main structural difference between federations is the distinction between centripetal and centrifugal federal constitutions. Centripetal means that the federation is built from the bottom up. That is, the centre of gravity of responsibilities, powers and resources lies at the bottom of society and not at the top. With a centripetal approach, self-contained entities, such as individual states, create a centre. The structure of a centripetal federation represents perfect subsidiarity. The drive to forge such a federation is therefore at its root. They do so in the realisation that states can no longer look after some interests on their own. These are then common interests. For example, defence, foreign affairs, climate, migration. To promote them, these entities establish a federal body to take care of these interests. This is always a limited and exhaustive list of common interests. There is no hierarchical link in the sense that the federal authority would have the power to take on interests other than those on the list or to intervene in the internal order of the constituent entities. Examples of such federations are the United States and Germany. 97 The federal constitution of the Federal Alliance of European Federalists (FAEF) is also centripetally designed. While centripetal federations are seen as strong federations, this is not, or to a lesser extent, the case with federations that are centrifugally created. These are built from top to bottom: an already existing centre operating as a unitary state may decide to transform itself into a federal state. In that case, pre-existing parts - such as provinces or regions - are given broader autonomous powers than the ones they already have. The initiative of this transformation into a federation then lies with the top. This implies a transfer of powers from the central body to decentralized authorities. In this way, since 1960 and with some daring political interventions, the decentralized unitary state of Belgium has been transformed into a federal state of three parts: Flanders (Dutch-speaking), Wallonia (French-speaking) and a small German-speaking part. Spain and the United Kingdom, each with autonomous regions, could also in this way, from the top down, give their regions more political powers and thus transform these two countries into a centrifugally built federal state. A form of further devolution. This study describes that centrifugal federations by their very nature have unitary aspects that one does not or hardly find in centripetal federations. With the value judgment that centrifugal federations are weaker, and for that reason vulnerable to failure. Why does one find unitary aspects in centrifugal federations? The answer is: politicians in charge of a unitary state usually have (extreme) difficulty in handing over the powers they hold at the top of that unitary state to lower authorities. Even though the choice to convert a unitary state into a federal one is usually based on reason, i.e. on correct facts and correct arguments. In the case of Belgium, it was a brilliant solution to resolve the hostile relationship between Wallonia and Flanders, which had existed for a century and a half, by giving each a large measure of federal autonomy. But as soon as politicians are confronted with the task of reversing the balance of power, i.e. of placing the centre of gravity of responsibilities, competences and means at the heart of society, they often shy away. It is a question of mentality, not morality or legal preference, to exercise a kind of restraint after the decision to build a centrifugal federation in order to cede too much power to the parts. That is why one finds unitary elements in centrifugal federations. In some more than in others. Examples may make this clearer. Unitary aspects in some centrifugal federations Belgium The process of transforming the Belgian decentralized unitary state into a federal state led to the insertion of Article 35 into the Constitution in 1994. That article depicts the core of a true federal state, namely that the federal government is bound to exercise only those powers that are limitatively and exhaustively assigned to it by the Constitution. One designs a federal state only when it is clear that there must be a centre to look after common interests that the parts cannot look after themselves. All other powers fall within the domain 98 of the powers of the federated states of Wallonia and Flanders3. So, it was necessary to make such an exhaustive list of competences for the federal government. However, no such list has been drawn up to date. Thus, Article 35 has not yet come into force. The construction of the Belgian Federation is not yet finished. The reason for this lies primarily in the opposition of the French-speaking population who do not accept that the federal level would have fewer powers. Behind this lies a matter of mentality. The French-speaking Belgians originate from France. France is a centralized unitary state. ‘Paris' decides, the 'Départements' obey. It is this French mental top-down culture that leads Wallonia to want to maintain unitary power at the top of the federal government and not (yet) to fully apply the federal model that has been on hold since 1994. Belgium has two other unitary aspects. The federal government is composed of equal numbers. This means that it has an equal number of French- and Dutch-speaking ministers. A typical unitary aspect. If it were a centripetal federation, the Belgian federal government would have no Walloons, no Flemings, but only Belgians. Without a parity between those ethnic groups. Another unitary aspect is the fact that the federal government has the power to initiate laws and to amend laws passed by parliament. In this way, the executive power is - steering - part of the legislative power. From the point of view of checks and balances for a pure trias politica, this is undesirable. India Federal India, consisting of 28 states, is known for its unitary aspects. I will mention a few of them. o The federal President appoints the heads of state (Governors) of the states. The President also determines their term of office. Thus, he has a top-down grip on the way the states of the federation are run. In our4 centripetal Constitution, one is head of a member state in accordance with the constitution of that state: elected, appointed or by royal succession. The federal body has nothing to do with this. o The citizens are not citizens of a member state but citizens of the federation. In our constitution, they are both citizens of their national state and citizens of the federation. o The federal constitution is also the federal constitution of the federated states. In our constitution, the federated states retain their own constitutions. o The federated states do not have their own financial domain and are financially dependent on the federal government - and therefore dependent in their own development. In our constitution, the federal states have their own financial domain and maintain a financial relationship with the federal government through a Fiscal Union. o The President has the power to disapprove certain laws of federal states. Our constitution prohibits the federal government from interfering with the internal order of states, except to protect representative democracy and the rule of law in those states. 3 I will not mention the German-speaking part of the country because a separate arrangement has been made for the protection of the interests of this community of about 80,000 inhabitants. 4 By 'our' I mean the ten-article Federal Constitution, designed by the FAEF Citizens’ Convention, mentioned in the Introduction. 99 o The Indian constitution confers on the federal government the power to take decisions on the same matters over which states have jurisdiction. A well-constructed federation has shared sovereignty (through the vertical separation of powers) but never shared powers because they are a source of conflict. o The federated states do not have the same number of delegates in the House that represents them. The larger states have more than the smaller ones. Our constitution, through numerical uniformity of the members representing the states, enables small states to counterbalance the Citizens' Chamber through checks and balances, where the larger states do (can) have the advantage. The Indian constitution has even more unitary aspects, but I will suffice with this enumeration because it is only necessary to show that centrifugal federal constitutions retain unitary elements by nature. In the eyes of administrators who love power, top-down management is sensible and good. At the expense of democratic relations. In the long run, this undermines the survival of a federal state built on unitary aspects. In the case of India, the hegemony of Hinduism, dominant in relation to the Muslim, Sick and Christian communities, is an additional vulnerable factor. The current wave of extreme perception of Hinduism under the name of Hindutva, proclaiming 'pure Hinduism', is a disturbing signal of an out of control unitarianism which, as always in history, shows itself in divide and rule. Ethnic and religious differences, safely nurtured in a centripetal federal state, in a centrifugal federal state with many unitary aspects, quickly degenerate into riots, violence and oppression. Forced centrifugal federations: Indonesia and Cameroon The process of decolonisation after World War II produced a number of federal states. This was not always done in a well-considered way. In some cases, decolonized peoples who could not stand each other were swept together in a federal context, without a rock-solid democratic constitution as a basis. Although a federal state is an excellent instrument to make different cultural ethnicities live together in peace5, a combination of poor constitutional work and the ever-present urge of autocrats to gain unitary power sometimes kills such a federation. This was the case, for example, in Indonesia and Cameroon. Indonesia To conclude the East Indian colonization by the Netherlands, Indonesia was handed over to the Federal Republic of the United States of Indonesia in December 1949. Immediately afterwards, in January 1950, President Sukarno - a unitarian pur sang - began dismantling the federation in favour of establishing a centralist unitarian state of Indonesia. He was able to achieve this in mid-August 1950 - thus within eight months. With the use of force, allowed to him by a completely wrongly formulated federal constitution, designed under the supervision of a special commission of the United Nations. It is one of the many indications A federation by Israel and Palestine, maybe called ‘Filistina, will be the only instrument to preserve peace in the Middle East. In this respect, it would be advisable for both parties to read Immanuel Kant's three principles carefully: lasting peace is based on (1) a civil constitution that secures freedom and equality, (2) a federation of constitutional states, and (3) world citizenship as an extended form of hospitality, driven by human rights. 5 100 that the UN has little or no understanding of the importance of well-formulated federal state building in the context of peacebuilding and peace keeping.6 In September 1950, nine months after the transfer of sovereignty and the complete dismantling of the federation, Indonesia was welcomed with jubilation (because it was the largest Muslim state to join the UN) as member state no. 60 of the UN. The victim was the Moluccas, part of one of the member states of the destroyed federation. From one colonizer - the Netherlands - they fell into the hands of another colonizer - Indonesia. To this day, the Moluccas are oppressed and exploited7. The moral of this story is: only a well-designed democratic federal constitution from the bottom up can resist the ever-present unitary tendencies of autocrats. Cameroon The typical unitary-driven French administrative mentality is also at the root of the failure of the federal state of Cameroon. As a result of the post-war French and British decolonization processes, French- and English-speaking Cameroon were squeezed into a federal state in 1961. Although it was a multi-linguistic and multi-ethnic federation, the supremacy of French culture led to a break-up of the federation in favour of a unitary, French-dominated, presidential republic through a referendum in May 1972. To this day, Cameroon suffers from armed conflicts between the French-speaking and English-speaking parts. That federalism - a major instrument for resolving conflicts and providing peace - is still alive in Cameroon is shown by the fact that in November 2021 a coalition of activists, with a federalist conviction to end the armed conflict, have created a platform called, Coalition of Cameroon Federalist Groups & Activists. Its spokesman, Dr Munzu declared 8: "By nature, Federalism is the highest level of decentralized governance. It is the point at which tolerance, mutual respect, fair play, solidarity, and cohesion in our society meet. Federalism offers the best prospect of instituting in Cameroon a form of democratic governance suitable for overcoming our nation's governance, institutional, socio-political, and economic development challenges." If possible, opt for a centripetal federation There is nothing against a unitary state, centralized or decentralized. But if there are good reasons to transform a unitary state into a federal state, then it is advisable to opt for a centripetal approach. With a centrifugal approach, unitary elements always creep in. They are often a hindrance to democratic relations, prosperity, tranquility and peace. And therefore, sometimes lead to the failure of the federation. See for the geopolitical irrelevance of the UN, Leo Klinkers and Mauro Casarotto, ‘The San Francisco Promise, Ukraine and UN’s irrelevance’: https://www.europe-today.eu/2022/03/23/the-san-francisco-promise-ukraine-and-uns-irrelevance/. 7 See the report ‘From Cold Case to Hot Case. Why and How the United Nations Can and Must Free the Moluccan People’, Federalism for Peace Foundation, April 2020: https://www.federalismforpeace.org/wpcontent/uploads/2020/04/RapMolEng12april20_def.pdf. 8 Cameroon News Agency, 25 November 2021. 6 101 Where there is no centre, the choice for a centripetal one is obvious. However, if one wants to federate a unitary state, thus a state that has already a center, one would be wise not to take the obvious choice of centrifugal building and opt for centripetal. That, of course, is easier said than done. Where a unitary state feels the urge to transform itself into a federal one, the initiative will always come from above. And thus, always be motivated to lead the transformation process in such a way that unitary aspects don’t get lost. With all the risks that this federation will collapse eventually. By force or otherwise. See the Russian case below. Why a wrong constitution can be the source of absolute autocracy: the Russian case After the dissolution of the unitary state of the Soviet Union in 1991, a federal constitution came into being in 1993. This was the first real constitution for Russia. It has 22 states with the status of republics. Each with its own identity, own constitution and own parliament. In addition to those republics, there are dozens of independent entities with their own say. Diversity, especially of other cultures and languages, is guaranteed. Together with the federated states, they form about 85 different constitutional units, including, for example, three federated cities. In other words, the Russian Federation has exceptional protection for the diversity of ethnic and cultural identities that make it up. It even borrows elements from the American and German constitutions. For this reason, it is obvious to call it a centripetal constitution. One is inclined to assume that it is therefore more than capable of withstanding a unitary seizure of power by an autocrat. But the reality is different. The Russian federal constitution differs from other centripetal constitutions in one, very striking element: it does not have three branches/powers, but four. It does not have a trias politica, but a quadruple politica. In addition to the Legislative, the Executive and the Judicial Branches, the Constitution, in Articles 80 to 93, grants the President an extensive and farreaching complex of powers of his own: thus, the creation of a Presidential Branch. For example: o He appoints the persons to the important posts, e.g. of the judiciary and the prosecution. o He leads their Security Council. o He decides when to hold elections. o He can dissolve the parliament. o He can make federal laws. o He can suspend laws. o He can issue decrees. o And he cannot be called to account for all of that because he has constitutional immunity. This places the President of the Russian Federation above the trias politica: the favorite spot of an autocrat. The constitution allows him to rule as he wishes.9 Article 1 of the Constitution President Putin is a follower of ‘The Fourth Political Theory’ of Russian philosopher Alexander Dugin, the creator of Neo-Eurasism, a vision of the state, economy, culture, autonomy and sovereignty that is diametrically opposed to the Atlantism of the Western world. A vision that divides the world into twelve great 9 102 states that the Russian Federation is a democracy, a federal state, a constitutional state, and a republic, whereby sovereignty belongs to the multinational people, with referendums as examples of direct democracy. Fine. However, empty words. With the complex of powers vested in him, this President can assume absolute rule. He can disrupt the checks and balances as he sees fit. Which he does and shows by his war in Ukraine and his actions within Russia in shutting down the media and prohibiting by law openness about the devastation Russia is causing in Ukraine. As safeguards against autocracy, the checks and balances in the Russian federal constitution are illusory. The Tsar derived his autocracy from succession. The Russian President bases it on a constitutional mandate. The comparison with Indonesia comes to mind. In that case, the many constitutional systemic flaws gave that President the opportunity to seize absolute unitary power. Like the President of Russia today, he could not be held accountable due to constitutional immunity. The difference with the Russian constitution is that the Russian constitution has one encompassing systemic flaw: a Presidential Branch, operating within the rule of Russian law, but nevertheless in flagrant violation of what is meant by the rule of law. The fundamentally corrupt Russia’s constitutional law allows the President to do anything that is prohibited by correct constitutional law. That one error reduces the legal, social and moral value of the entire Russian constitution to zero. The most dangerous weapon of an autocrat is not his nuclear arsenal, but a constitution that gives him absolute power. Would it not be obvious to complement the military strength Ukrainian allies are mobilizing against Putin's threats with an astute analysis of the fundamental errors of the Russian constitution? After all, that constitution is the legal breeding ground of Putin’s autocraticpsychopathic misconduct. Eliminating that source by professionally questioning the correctness of the constitutional foundation of Putin’s behavior is the task we face. It could be more powerful than all the sanctions combined. Otherwise, Putin's successor will simply carry on where Putin left off. We are also faced with the task of addressing the structural failure of the UN. Founded in 1945 to avoid wars once and for all, the reality is horribly different. A not insignificant number of the UN's 193 Member States are guilty of waging war, provoking conflicts and violating human rights. Article 6 of the UN Charter offers the possibility of expelling such countries - including Russia - from the UN. But that does not happen. A macabre example of an oligarchic, treaty-based operating system. And thus, like the European Union, part and parcel of a global crisis of democracy and human rights. Both institutions are ripe for replacement by a federal state form, built according to standards of federal statehood. In this case, too, the pen may be stronger than the sword. Who else but Europe has this mission? *** – supranational - spaces, including the ‘Russia-Eurasian Big Space’. It is this context that allows people like Putin to gain absolute power. 103 Spinelli's role on the federalization of Europe: start afresh from the Ventotene Manifesto Mauro Casarotto Secretary General of the Federal Alliance of European Federalists, mauro@faef.eu Introduction When we deal with federalism in Europe, the figure of the Italian Altiero Spinelli (1907-1986) and the genesis of the Ventotene Manifesto1 come with a legendary aura. This myth began with the aspiration of a World Federation, with a European Federation based on a federal constitution as initial pivot, and the declared objective to overcome nationalist disruptive tendencies with the creation of a perpetual peace2 among countries, first in Europe and then worldwide. In the following seventy years the aspirations of the Ventotene Manifesto have been channeled and downgraded by European politicians and European political movements into the creation of an intergovernmental system, based on treaties, lacking a constitution and the fundamental elements of federal states. This brief study aims at investigating the reasons that caused the Spinelli project of a constitutionally-united federal Europe to shrink around an intergovernmental set-up, far below the initial objectives expressed in the Ventotene Manifesto and how, in 2021-2022, the Citizens' Convention of FAEF3 worked so that the process for the birth of a European federation could resume by a democratic bottom-up process. Despite the fact that the Ventotene aspirations were progressively abandoned by the political class, the European establishment and pro-European movements. Caveat 1 See https://www.federalists.eu/uef/library/books/the-ventotene-manifesto. In 1795, Immanuel Kant published his essay ’Perpetual Peace: A Philosophical Sketch’. This historical pamphlet proposed the abolishment of standing armies and aggression wars, laying down the foundation of a world federation of free states. Kant says: ‘For states in their relation to each other, there cannot be any reasonable way out of the lawless condition which entails only war except that they, like individual men, should give up their savage (lawless) freedom, adjust themselves to the constraints of public law, and thus establish a continuously growing state consisting of various nations (civitas gentium), which will ultimately include all the nations of the world’. After all, without standing armies and mass destruction weapons arsenals in the ends of great powers and national states governments, the immediate possibility of a world war that can destroy peoples and the environment is defused. 3 F.A.E.F – Federal Alliance of European Federalists was founded by Leo Klinkers, Lorenzo Sparviero, Peter Hovens and Mauro Casarotto as a Promoting Committee in 2018. Later, on June 2 nd 2020, FAEF became a formal association, based in The Hague. The objective of FAEF, as stated in Article 4 of its Statute ( https://www.faef.eu/en_gb/what-are-we/ ) is the creation of a European Federation, based on a democratic Federal Constitution. This has to be done by bringing together the federalist and pro-Europe organisations in an umbrella federation in order to strengthen their degree of unity and by promoting knowledge and understanding of the conceptual rich history of Federalism. On October 2022, FAEF launched its Citizens’ Convention with the objective to elaborate a European Federal Constitution. 2 104 Before moving on to the role of Spinelli and the Ventotene Manifesto in European history it is essential to briefly analyze the key differences between a federal state and treaty-based systems. A Federal Constitution creates a federal state. When you have a federal state, tasks and powers are distributed in a vertical way. On the top, at the level of the federal body, there is space only for common interests of all federated states and citizens (like for instance civil rights, defence, borders control, emergency management, currency and others). In a wellbuilt federation, tasks and powers of the federal body are limited to what is necessary to take care of these common interests, as enumerated and defined in the Federal Constitution. This creates a barrier between the field of federal government and federal legislature and the government and legislatures of member states, thus preserving the higher degree of each country sovereignty, autonomy and peculiar culture and traditions4. Only this arrangement - a Federal Constitution - legally guarantees that a) the powers of the federal body are limited to what is strictly necessary to carry out those tasks assigned to it by the constitution and b) that member states are not permitted to unilaterally disregard pacts thus creating chaos and weakness of the whole union. When tinkering with treaties, states can always, even in a very sudden and arbitrary way, find the legal instrument or the pretext to not respect common rules. That is exactly what happens every day with the European Union5. While in a well-built federation, the federal body, entitled by a federal constitution and separated by the governments and legislatures of the member states, has the legal powers to prevent states to disregard common rules. Ultimately, conflicts between the level of the federal government and states / regions are governed by the federal courts based on what is established in the constitution. The treaty system is very appreciated by government leaders who use it without having to justify their decisions or discuss with citizens. In this context, they de facto act as administrators rather than democratically recognized leaders. They negotiate treaties, then they decide if and when they will respect them, usually marking their choice with the seal of ‘national interest’. More, there is no limit to what administrators can do with treaties so, if they find an agreement, they can actually erode each nation’s autonomy and sometimes also citizens’ rights. This is intergovernmental administration or, better, when intergovernmental administration is used where there should be a federal constitution instead, intergovernmental anarchy. We can see this anarchy at work also in the United Nations, as it previously was for the League of Nations, which was the forerunner of the UN. In the period immediately before, during, and the very early years after World War II, Spinelli and a consistent number of European intellectuals understood this but, unfortunately, this was not sufficient to create a European Federation. The origins See also Leo Klinkers, ‘Sovereignty, security and solidarity’, Lothian Foundation Press, 2019, Chapter 2. See also Mauro Casarotto, ‘Why the EU will never resolve the conflict with national courts’, published on Europe Today on October, 28th, 2021, https://www.europe-today.eu/2021/10/28/why-the-eu-will-never-resolve-theconflict-with-national-courts/ . 4 5 105 Altiero Spinelli was born in Rome on August 31, 1907. Being Secretary of the Young Italian Communists in the context of Fascist Italy, he was imprisoned in 1928 and later confined to the Ventotene island off the coast of Naples from 1937 to 1943. About sixteen years imprisoned. In Ventotene, Spinelli encountered a number of anti-fascist activists and wrote the famous Manifesto with Ernesto Rossi (1897-1967, liberal-socialist activist) and Eugenio Colorni (1909-1944, socialist activist killed by Fascist militia at the end of the war). The writing of the Ventotene Manifesto (August 1941) was deeply influenced by the papers of British federalists submitted to Rossi and Spinelli by Italian liberal intellectual Luigi Einaudi6. At the end of 1938 British Federalists organized in a particularly active movement, the ‘Federal Union’, which, before the deflagration of World War II and during it, played a key role in influencing European politicians and activists, including Winston Churchill7. In a few months, Federal Union grew with 225 branches across the United Kingdom and more than fifteen thousand members. British federalism gathered around Federal Union was deeply influenced by the Philadelphia Convention of 1787 and the Federalist Papers of James Madison, Alexander Hamilton and John Jay that opened the way to the ratification of the United States Federal Constitution. The internal debate of the movement included the discussion on a World Federation to replace the ineffective intergovernmental League of Nations. Spinelli considered the reading of the British papers a turning point in his political life: “Their analysis of the political and economic perversion to which nationalism leads, and their reasoned presentation of the federalist alternative, remained in my memory as a revelation up to this day … Since I was looking for clarity and precision of thought, my attention was not attracted by the nebulous, contorted and hardly coherent ideological federalism of the Proudhonian or Mazzinian type, which thrived in France and Italy, but by the polished, precise and anti-doctrinaire thought of the English federalists … who proposed to transplant to Europe the great American political experience”8. In July 1943, following the military defeats of the Axis, Mussolini was dismissed and the conditions were created for the liberation of Spinelli. A few days later, in August 1943, Spinelli and other anti-fascists founded in Milan, in a clandestine form, the ‘Movimento Federalista Europeo’. Later, immediately after the end of World War II, the Union of 6 Luigi Einaudi (1874-1961), professor of economics at the University of Turin, despite his liberal positions, was granted a certain freedom of expression by Fascist regime. Einaudi became a prominent figure in Italian politics and, after the end of the war, was elected President of the new born Italian Republic in 1948. 7 Federal Union, founded by Charles Kimber, Derek Rawnsley and Patrick Ransome, gathered a consistent number of intellectuals of liberal and socialist thought, such as Philip Kerr, Lionel Curtis, William Beveridge, Lionel Robbins, Arnold J. Toynbee and many others. The impulse of Federal Union and British federalism was at the basis of Prime Minister Winston Churchill offer to France of a ‘indissoluble union’ with common bodies in the fields of defence, foreign policy, financial and economic policy, common citizenship, and a single war cabinet. This happened just a few days before Paris was taken by Nazists, in June 1940, so even before Ventotene Manifesto. But it came too late and French government majority decided to surrender to Germany. See Andrea Bosco, ‘June 1940. Great Britain and the first attempt to build a European Union’, Cambridge Scholars Publishing 2016. 8 Quoted in ‘Democracy, Federalism, The European Revolution, And Global Governance’, Andrea Bosco, Cambridge Scholars Publishing, 2020. 106 European Federalists (UEF) was founded too. In those years a number of conferences were held, involving prominent politicians and intellectuals. Ventotene and Hertenstein Manifestos In September 1946, during a meeting in Hertenstein (Switzerland) consensus was found on an agenda of twelve points. The first point of Hertenstein Programme states ‘’a European Community on federal lines is a necessary and essential contribution to any world union‘’. So again European federalism as a brick for a future World Union. But in point three, this European Federation is linked with article 52 of the United Nations Statute, so an intergovernmental treaty-based organization paralyzed by an oligarchic Security Council that does not respect democratic principles and equality between member states. More, the word ‘constitution’ disappears in the twelve points of the Hertenstein Manifesto. Even when (in points 6 and 7) it speaks of civil rights, duties and responsibilities of European Citizens, it is said that this had to come with a ‘declaration’, not a constitution. That is the main difference between the Ventotene Manifesto and the Hertenstein Programme9 pointing out the divergence between constitution-based federalism (that is at the basis of the United States of America, Switzerland, Germany, Australia and other federations) and the creation of treaty-based intergovernmental organisations, like the European Economic Community (1957 Treaty of Rome), later the European Union (1993 Maastricht Treaty and 2007 Treaty of Lisbon) but also the United Nations (The United Nation Charter signed in June 1945 in San Francisco, despite its ambiguous name is a treaty, not a constitution). Already in Hertenstein in 1946, although the unquestionable desire to provide Europe - and in perspective the whole world - with a system that could guarantee peace, freedom and prosperity, centralism, that characterized the history of European States in the last three centuries10, emerged again. European nation-states resulted afraid to lose their prerogatives and their independence. Despite the example of the 1787 Philadelphia Convention and the existence of Federal Switzerland11 in the heart of Europe, politicians and intellectuals decided to follow a completely different route. Differences between federalization in the USA and Europe The thirteen colonies that formed the United States of America declared their independence from the British crown in 1776. After the Declaration of Independence, the colonies united in a treaty known as the ‘Articles of Confederation’. The war with Great Britain ended in See also ‘Constitutional and institutional toolkit for establishing the Federal United States of Europe’, FAEF, 2021, chapters 2.13 and 2.14. 10 From the treaties of Münster and of Osnabrück, the so called ‘Peace of Westphalia‘ of 1648 that, de facto, created a new political order in Europe based on nation-states with the objective to put an end to the chaos of continuous wars between different clans, counts, dukes, cities, kings, and the Pope. As we all know, this did not prevent three centuries of conflicts in Europe. 11 Switzerland adopted a Federal Constitution in 1848. The fact that it has retained its old name of 'Swiss Confederation' should not mislead. Since 1848, Switzerland has been a federation and no longer a confederation. The difference between a confederation, like Switzerland before 1848 or the United States of America before 1787, and a federation is that a confederation is not a state with a constitution, but a union of states created and regulated by treaties and intergovernmental agreements. 9 107 1783, but soon the Americans realized that maintaining their newly acquired independence from the colonial aims of powerful European countries was far from obvious. The thirteen colonies were infant states. Once the British army was driven out, the risk was that they would begin to divide, pursuing interests that already seemed to be partially different. Fortunately, they could count on leaders and intellectuals (Benjamin Franklin, Alexander Hamilton, James Madison, John Jay, George Washington to quote the most famous) who were extremely well prepared, and courageous enough to prevent this by creating one of the most solid political systems in history, and the first modern federal state. This has been done by using several elements of European philosophy: Locke, Montesquieu, Rousseau, Althusius and others. Why not, despite this noble and particularly effective example, did Europeans do the same by adopting a federal constitution and chose to employ intergovernmental treaties instead? European politicians and intellectuals may have been persuaded that the path taken in 17871789 by the United States of America was unsuited to the European reality because of the historically consolidated character of European state formations. If compared with the very young thirteen colonies in America at the end of the 18th century, in Europe we have ancient states, with strong national and regional identities, languages, different traditions and institutions. Each of them for a number of cultural reasons is an element of resistance when a radical paradigm shift is proposed. National establishments, consolidated by centuries, with their entourages of professional politicians, officers, diplomats, bureaucrats form a class, usually with oligarchic aspects, that tends to block any real attempt to change, especially if this change can be perceived as a loss of national sovereignty, and therefore a loss in their personal and institutional sphere of influence. This is often accompanied by a cold rationalist and opportunist attitude, all huddled around the present or the very short-term future: upcoming elections, upcoming appointments, reappointments, etc. This attitude comes veiled in reason, but deprived of creative force and blind to the needs of the future and the claims of the young and the next generations, who are the main victims of the status quo, at times when change is needed12. American founding fathers understood that a change of paradigm was needed. Spinelli in Ventotene understood this too. But, in our continent, immediately after the end of World War II, when the moment came to translate this need into concrete actions and results, the occasion was lost and intergovernmental treaty based institutions were created instead of a constitutionally based federation. German philosopher Max Weber (1864-1920) described such kind of phenomenon in his theory of the ‘Iron cage’, that is the development in modern societies of a hierarchical organization, based on rationalization and routinization of authority and decision-making. This is accompanied with rigidity and oligarchy and the disappearance of charismatic and motivating leadership. 12 108 This way, not only following but actually aggravating the conceptual mistake of Hertenstein13 of mixing federal proposals with intergovernmental agreements, the French diplomat Jean Monnet and France Foreign Minister Robert Schuman organized the well-known May 9th 1950 declaration. In the Schuman Declaration the word ‘federation’ appears two times but, at the end, the initiative was put in the hands of heads of government with the encouragement to employ intergovernmental agreements. French administrative political culture based on centralism played an important role, in this phase. As a result, the European Community was built as an intergovernmental system based on treaties. As a consequence, another class of establishment was created and added to that already existing in each state: the establishment of the European Community institutions, born and consolidated after 1950 under the impulse of the Schuman Declaration and intergovernmental treaties. This way, in the last seven decades, two classes of oligarchies block attempts to create a European federal union: one at a national level and another at the level of the European Union. They form an accumulation of resistance to the birth of a constitutionally-built European Federation. Spinelli initiatives and the switch to intergovernmentalism These national and intergovernmental mechanisms proved to be so strong that they were able, from the early 1950s onwards, to absorb and thus pushed to the background even Spinelli's initiatives. In 1950 the European Coal and Steel Community (ECSC)14 was established and an attempt was launched to create a European Defense Community (EDC). Spinelli, starting from the assumption that the creation of a European Army would immediately pose the critical question of its political control, tried to push, mainly through Alcide De Gasperi’s Italian government, to give the ECSC Assembly a constituent mandate. By putting in action a sort of ‘personal diplomacy’ he fought for the creation of a European Government responsible in front of a bicameral legislature formed by a house representing the European peoples and another house representing the states, plus a Court of Justice. But the French Parliament decided to reject the ratification of the treaty establishing the EDC. This way the European Community remained a common market area, regulated by intergovernmental agreements. West Germany joined the NATO that became the key element of the defense of West Europe. 1979 was the year of the first direct election of the European Parliament. Spinelli decided to abandon his role in the Commission and managed to be elected at the European Parliament. He thought that this was the right moment to try again by using the European Parliament as a constituent assembly; so again he tried to use intergovernmental institutions to create the federation. He proposed a ‘’Draft Treaty Establishing a European Union’’ also known as 13 In the Hertenstein Programme, federalism is quoted three times in points 1, 2 and 12. But there is not reference to a constitution. The Hertenstein compilers used instead, in articles 6 and 7 the word ‘declaration’ that resembles the declarations that were at the basis of the UN intergovernmental system. 14 The six ECSC founding countries were West Germany, France, Italy, Netherlands, Belgium and Luxembourg. The United Kingdom was still focused on its dissolving colonial empire and later on Commonwealth. The United Kingdom joined the European Community only in 1973. By using veto power, French President De Gaulle twice rejected the access of the United Kingdom in 1963 and 1967. 109 ‘’Spinelli Treaty’’, that was largely approved by the European Parliament. This draft treaty did not explicitly mention either a constitution or a federation. This was based on Spinelli’s hope to avoid doctrinaire discussions. This is well explained by Spinelli himself in his speech before the Italian Communist Party convention of 1979: ‘’Now if you want to change this constitution which, from a formal point of view, is a treaty, there are two basic ways to do it: either governments tell us: we made them, we change them and we change them in our traditional ways, that is, by having them negotiated by our diplomacies. Then the operation will be in really good hands! Nothing will come of it or something will come of it that is insufficient, delayed and inadequate. Or, when we say democratization of the Community, we must start by saying that in our European democracies the reforms of our constitutions are elaborated and voted by directly elected popular representatives. In other words, the European Parliament will have the role of changing the constitution of the Community. When this initiative is launched, the necessary compromises will be made because it will be necessary to have the strongest possible majorities. But if we manage to get the transformation of the Community into the hands of a political body - which by its nature is interested in developing it - we can have confidence that things will move forward. But if, on the other hand, we blindly accept - because it is arrogantly said that it has always been done this way - that treaties have always been made by diplomacies, if we accept this, we accept that we have lost before we have fought.‘’15 Spinelli’s idea that national diplomacies would never produce a European Federation is very clear. It’s also clear that, arrived at this point, Spinelli thought that it was possible to use the European Parliament (supported by the courts that had to state the supremacy of communitarian law over national law) as a sort of revolutionary class, legitimized by popular elections, and able to transform intergovernmental treaties into a constitution. At the end of Spinelli’s life, with the proposal to the European Parliament of the draft treaty in 1984, the process of absorption of Spinelli's revolutionary proposal of a federation on a constitutional basis within the increasingly consolidated - and therefore resistant intergovernmental system, came at a conclusion. The draft treaty included the conservation of the Commission and the intergovernmental Council, the key institutional elements that embody in the European Community and later in the EU the dominion of national interests rather than the devotion to common interests. Sui generis? The Draft Treaty Establishing a European Union attempt also inaugurated the legend of the chimeric monster, the ‘constitutional treaty’. A sort of oxymoron often disguised with the assertion that the European Union is neither a federation nor an intergovernmental system, but a union 'sui generis'. The Spinelli draft treaty was not adopted due to the resistance of some of the new European Community members states (United Kingdom, Greece and Denmark), but the ‘Constitutional Treaty’ appeared again in 2003, with the ‘Treaty establishing a Constitution for Europe’. This Speech quoted in Pier Virgilio Dastoli, ‘’Spinelli Project in current times‘’, article published in Italian periodical ‘’ Il Federalista ‘’, Publisher EDIF, 2014. 15 110 treaty was produced by the ad hoc intergovernmental Convention under the Presidency of Valéry Giscard d'Estaing. This attempt was rejected too by referendum in France and Netherlands16. The proposals of the Spinelli Treaty and the 2003 Constitutional Treaty were then largely adopted by another treaty, the Treaty of Lisbon, in 2007. The narrative of many pro-Europe parties, movements and intellectual since then, was focused on pointing out that the fact that the Treaty of Lisbon adopted many of the proposals of the ‘constitutional treaties’ elaborated by Spinelli and by the 2003 Convention, was a de facto victory of federalists over nationalism. Again, the tale of the ‘sui generis’ union. The so-called ‘functionalist method’ that lays behind this narrative, embodied in its first phase by the action of Jean Monnet, starts from the assumption that, if you manage to renew the treaties by adding every time more functions to the European institutions, sooner or later you will have a real federation. Even in absence of a federal constitution. This is the element of justification that continues to be used for decades by an unprepared and selfish political class, only legitimized by national interests, for not following the authentic path of creating a true federation as was done in Philadelphia in 1787. The only reason not to draw deep inspiration from the 'best practice' of Philadelphia (or from the example of the birth of federations such as Switzerland, Germany, Belgium or Austria) is that of a greater effectiveness of the application of the sui generis set-up than the adoption of a federal constitution. But only a fool would argue that the sui generis European Union is working better and providing citizens with superior benefits than ‘classic’ federal states. The Treaty of Lisbon is de facto the result of at least three failed attempts to create a European Federation by using treaties negotiated by heads of governments and/or by activating intergovernmental institutions/conferences. It proves that it is very difficult for an organization to self-reform to such an extent that it transforms itself from an intergovernmental organization to a federal government. This can happen only in the presence of a deeply prepared, far-sighted and disinterested ruling class (disinterested to the point of questioning its own privileges!) or in the face of a serious state of necessity or danger, as might be the case with Europe in 2022. The European states failed to federate at the end of World War II, by opting for an intergovernmental arrangement (later re-elaborated in the sui generis narrative) thus creating an accumulation of resistances for any further attempt of endowing Europe with a federal constitution. This is the story of a great political failure. Federalism standards and the end of the dual mandates 16 The rejection of the Treaty establishing a Constitution for Europe by France and Netherlands electors produced the cancellation of the referendum in other countries: United Kingdom, Poland, Czech Republic, Ireland, Denmark and Portugal. The ratification vote in Sweden legislature was suspended too. 111 Having arrived at this point, in 2022, with two major crises, the Covid19 pandemic and the War in Ukraine raging over Europe and the whole world, what can we do to reverse the intergovernmental failure and finally create a functional federal union in Europe? Let’s first analyze the last stage of the functionalist narrative which is the political battle for the abolition of the veto right in the Council. It is said that, if any decision in the EU Council will be taken by simple majority, the process of integration will be no more paralyzed and we will at the end have a democratic European Federation. So the claim is: give us a treaty revision that abolishes the veto right, this will be a big step towards! Generally speaking, the unanimity principle is a backward way to take decisions. But in the case of the European Union its abolition will not solve any issue. This because of the original mistake of organizing the Union as an intergovernmental body. In the Council, in fact, national heads of government and heads of state seat with a dual mandate: the mandate given by their national states, legitimized by regular national elections, and the EU mandate. But, being the influence of national leaders legitimized at a national level, the promotion of national interests pushes in the background the promotion of European, common interests. Dual conflicting mandates are always one of the worst political dramas. At the EU level, where omnipresent classic political problems (like lack of competence or thirst of power) are combined with the flaws of the intergovernmental system, they are a real cancer. Either they block any meaningful positive decision, or they trigger even bigger conflicts between member states17. The only way to disarm this time bomb in Europe is to remove dual mandates, by eliminating the EU Council and creating a real federal government. Politicians need to know that they have two options: have a leadership role in national politics or have a leadership role in common European politics. The two mandates must be separate, each in its own sphere and with its own system of legitimacy. Having reached this point we can outline what the essential standards of European federalism should be, which are those already applied in functioning federations. 1) Constitution. A European Federation can only be created with the adoption of a federal constitution. 2) Common interests. The Constitution must be centered exclusively on the common interests of all member states and all European citizens. No opt-outs18, no space for partisan national driven egoism. This includes no dual mandates. The federal body will take care only of the common interests of each member state. Member states maintain their autonomy and independence in all other fields. On this topic also read Leo Klinkers, ‘The right of veto as a hand grenade in the European Council‘, Published on Europe Today magazine on March 30th, 2021. Link: https://www.europe-today.eu/2021/03/30/the-right-ofveto-as-a-hand-grenade-in-the-european-council/. 18 Opt-out is the colloquial formula used to indicate the situation, frequently found in the treaties of the European Union, whereby a state is granted its request to be exempted from the application of certain rules that generally apply to other states. For example, Denmark, which has asked not to be obliged to adopt the common currency (as it was for the United Kingdom before Brexit), or Poland, which is exempted from the full application of the Charter of Fundamental Rights of the European Union. 17 112 3) Barrier. The Constitution has to establish a barrier between the powers of the federal body and the powers of the member states. The members states remain sovereign, keep their institutions, traditions, etc. There is no forced assimilation. In short, a well-built federal state is a political structure that, at a transnational level, thanks to a constitution, prevents states from acting in subordination to their own national interest. It introduces cooperation by minimizing the level of conflict between member states and, through limiting the powers of the federal body (thanks to the barrier), prevents the forced assimilation of the contracting states, preserving their identities. Federalization is the only valuable alternative to treaties anarchy. The war in Ukraine, which is unfolding as this study is being written, is clearly demonstrating Europe's lack of unity, vision, and coordination in the face of geopolitical crises, even when they take place at the very heart of the continent19. The handhold to which European states desperately cling is that of NATO, which can be translated into a subordination of European foreign and defense policy to the strategy of the United States of America. In this anarchic context, one of the elements that generated the war in Ukraine and that makes this conflict even more dangerous and exposed to the possibility of an enlargement, is just the European weakness and the absence of a federation that gathers the countries that a) do not accept to be part of the Russian sphere of influence and b) want to dialogue on equal terms with the other great powers, first of all USA and China. In this sense, Altiero Spinelli's vision is still prophetic, however dark: ''Although it cannot be said publicly, the fact is that in order to be born Europe needs a strong Russian-American tension, and not detente, just as it will need a war against the Soviet Union in order to consolidate itself''.20 Do not waste this crisis, return to Ventotene Europe should not waste the current crisis as it did after World War II. In that period, the need for a European federation has been outlined by politicians, diplomats and intellectuals, but for the reasons analyzed here, it has always been preferred to set aside the constitutional-federal system, perhaps with the hope of being able to magically reactivate the federal option when times were deemed more opportune. But this is increasingly difficult as centers of resistance are created and nurtured. The activity of Spinelli himself, initially revolutionary, has been gradually reabsorbed into the intergovernmental method, the logic of treaties and tactical maneuvering. Spinelli himself writes about this: ‘’My life can be divided into six cycles of actions, each based on a different hypothesis. 1) Between 1943 and 1945 I worked on the hypothesis of an impetuous democratic rebirth that 19 We should remember that another long-standing bloody conflict happened in the heart of Europe in the period 1991-2001, the Yugoslav Wars, that European countries were not able to prevent or regulate. 20 Altiero Spinelli, ‘European Diary 1948-1969’, Publisher Il Mulino, 1989. 113 would start from the destruction not only of the European order of the past, but also of the internal order of almost all the nation-states of Europe. 2) Between 1947 and 1954, I worked on the hypothesis that the great moderate ministers of Europe, encouraged by the democratic missionary spirit that was then animating American foreign policy and frightened by what was happening in Eastern Europe, would listen to us and move toward federal construction. 3) Between 1954 and 1960 I worked on the hypothesis that it would be possible to mobilize Europeanism, now widespread, into a growing popular protest - the Congress of the European People - directed against the very legitimacy of the nation states. 4) Between 1960 and 1970, having withdrawn almost completely from political action, I meditated on the significance of the European Economic Community, on the new aspects of military defense introduced by nuclear weapons, and on the possibility of relaunching federalist action. 5) Between 1970 and 1976, I worked on the hypothesis that the Commission of the EEC could have taken on the role of political guide in restarting the construction of political union. 6) Between 1976 and 1986, I worked on the hypothesis that the European Parliament should have taken on a constituent role in the construction of Europe.’’21 Spinelli was a prophet and a visionary who unfortunately failed to break down the classical role of the nation-state as an unavoidable actor in transnational politics. As long as the political class does not have the courage - and enough competence - to subordinate national interests to the common interests of all Europeans, only the citizens will be able to fill this very serious gap in European history. In this regard lies the whole sense of the Citizens' Convention organized by FAEF between October 2021 and the end of March 2022. This initiative has taken up the exact intentions of the Ventotene Manifesto, on the basis of what has been observed in recent and less recent European history and of the example of the construction of other federal states. The Philadelphia Convention has been imitated in its repudiation of intergovernmental solutions, and it has been decided to write a constitution that integrates the best examples of democratic functioning of society, developed in the last centuries. Now the fruit of this work is presented to the citizens of Europe. It is up to them to judge and, if they deem it appropriate, to press the political class so that the European Federal Constitution is ratified and adopted. Quoting the concluding words of the Ventotene Manifesto: ‘’The time has now come to get rid of these old cumbersome burdens and to be ready for whatever turns up, usually so different from what was expected, to get rid of the inept among the old and create new energies among the young. Today, in an effort to begin shaping the outlines of the future, those who have understood the reasons for the current crisis in European civilization, and who have therefore inherited the ideals of movements dedicated to raising the dignity humanity, which were shipwrecked either on their inability to understand the goal to be pursued or on the means by which to achieve it have begun to meet and seek each other. The road to pursue is neither easy nor certain. But it must be followed and it will be!’’ *** 21 Altiero Spinelli, ‘How I tried to become wise. The drop and the rock’, edited by Il Mulino, 1987. 114 115 ABOUT FEDERAL CONSTITUTIONAL LAW MAKING This section of the in-depth studies explores fundamental features of federal constitutional law making. Giuseppe Martinico describes in detail how, in recent decades, thinking about European federalism has produced many dozens of features and conceptual approaches. His study contains a wealth of 'main roads and side roads' of the 'map' of conceptual federalism. Frans Tonnaer holds key points of FAEF’s federal Constitution up against established doctrines of correct constitutionalizing. He tests the Constitution against - among others our rules on human rights, separation of powers, representative and direct (participatory) democracy. 116 A study in the field of Comparative Federal Constitutions Giuseppe Martinico Full Professor of Comparative Public Law at the Scuola Sant’Anna Pisa, giuseppe.martinico@santannapisa.it Aims of the paper The aim of this working paper is to briefly reflect on the concept of federalism as it is applied to the post-state horizon. The perspective adopted will be that of an expert in comparative law. The structure of the paper is as follows: first, I shall offer a general overview of the concept of federalism. Second, I shall look at the structures that scholars normally find in federal systems. Finally, I shall explore the possibilities of a post-state federalism. Defining the Impossible: The State of the Art As Diamond argued in a well-known article, Federalism has several purposes; indeed, the federal formula can be seen as a multi-function device that depends on the issues that characterise the political context. For example, see the well-known literature on so-called ethnic federalism1: ‘This is the perspective within which federalism must be understood as a political arrangement made intelligible only by the ends men seek to make it serve, and by the amenability or recalcitrance of federalism to those ends. At various times, men have sought varying ends from federalism, and the variety of federal systems has resulted from that variety of ends; each actual federal system differs from all others, as we shall see, by the peculiar blend of ends sought from the particular federal system. But the nature of federalism as such reveals itself in the ways federalism has served and failed to serve those varying ends2’. A constant element recalled in the literature is the difficulty of imprisoning federalism in a definition. ‘Defining federalism and classifying federal states have kept scholars busy for centuries, filling libraries in the process’3. Indeed, there is no universal agreement on what constitutes federalism.4 Furthermore, there is no consensus on how to classify federal countries. There have been many definitions of federalism and it would be pointless to attempt to provide an overview here. Precisely with reference to the question of ends in the history of federalism, Karmis argued a few years ago that ‘cette histoire présente trois grands courants de réponses à la question des fins normatives des arrangements fédéraux: le fédéralisme universaliste, le fédéralisme communautarien et le fédéralisme pluraliste’5. A. G. Selassie, “Ethnic Federalism: Its Promise and Pitfalls for Africa”, 2003, https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://en.wikipedia.org/&httpsredir=1&article= 1088&context=facpubs 2 M. Diamond, “The Ends of Federalism”, Publius, 1973, 129, 129-130. 3 F. Palermo, “Perspectives on Comparative Federalism”, 2018, http://50shadesoffederalism.com/theory/perspectives-on-comparative-federalism/ . 4 A Gamper, “A Global Theory of Federalism: The Nature and Challenges of a Federal State”, German Law Journal, 2005, 1297. 5 D. Karmis, “Les multiples voix de la tradition fédérale et la tourmente du fédéralisme canadien”, in A. Gagnon (ed.), Le fédéralisme canadien contemporain. Fondements, traditions, institutions, Les Presses de l’Université de Montréal, 2006, 63, 67. 1 117 Among the differences identified by Karmis is the distinct way of conceiving the idea of nation and people. The first type of federalism (‘fédéralisme universaliste’6) is characterised by the thesis that ‘de manière à contrebalancer la tendance aux particularismes, les fédéralistes universalistes conçoivent la fédération comme étant mononationale et insistent sur le fait que les institutions centrales sont les seules à pouvoir représenter cette nation dans son entièreté’7. For Karmis, the leading proponent of the second type of federalism (‘fédéralisme communautarien’) is Calhoun, former Vice President of the United States and champion of the so called ‘compact theory8’; ‘Calhoun met l’accent sur les droits des États afin de protéger les minorités territorialisées contre la tyrannie de la majorité représentée par les institutions centrales9.’ Finally, the third model of federalism (‘fédéralisme pluraliste’) ‘rompt avec la conception moniste de la culture et de l’identité qui domine la modernité’: ‘Ainsi, à l’encontre d’une identification hégémonique à une petite république comme chez Montesquieu ou à un État fédéré au caractère et aux intérêts particuliers comme chez Calhoun, la superposition, l’interaction et la négociation croissantes des cultures favorisent l’affirmation et la reconnaissance non seulement d’une pluralité d’identités, mais d’une pluralité d’identités qui sont elles-mêmes plurielles10.’ The openness and inclusiveness that characterise pluralist federalism also explains the great success of asymmetry as a technique of integration in the Canadian context, a true example of multinational federalism. Starting from similar considerations on the ambiguity of the concept of federalism, Bassani recalled that ‘in any attempt at a theoretical investigation of federalism, either as an institutional fact or as a political doctrine, a number of qualifying elements come to the fore. Firstly, as has just been pointed out, the ambiguity of the aims: union, but not to the point of amalgamation. Secondly, the pactional element: the Federation was born from a foedus and “La thèse centrale des fédéralistes universalistes fait un lien entre la fédération et la défense d’une valeur universelle première, la liberté individuelle”, Ivi, 71. 7 Ivi, 76. 8J. C. Calhoun, ‘South Carolina Exposition and Protest’, 1828, https://clockworkconservative.wordpress.com/freedom/primary-documents/south-carolina-exposition-andprotest/ ’. John Calhoun is one of the most controversial figures in American history. Calhoun was Secretary of War under James Monroe’s presidency, Secretary of State under John Tyler and was twice Vice President of the United States (from 1825 to 1832) under John Quincy Adams and Andrew Jackson. He was also one of only two vice presidents (the other being Spiro Theodore Agnew under Nixon) who resigned before the end of their mandate. A fierce defender of states’ rights and someone who studied the right to secession, he was a man of his times. Born in Abbeville, South Carolina, he was a Jeffersonian Republican, a member of South Carolina’s legislature in 1808 and then of the House of Representatives of the United States in 1811. He was a champion of the agrarian south against the industrialised north of the country, even during his vice presidency when he assumed a clear position and wrote (anonymously) the South Carolina Exposition and Protest, a document that then inspired the nullification crisis in 1832 after the approval of the Tariff of Abominations. The story of John Calhoun is that of a man rooted in the culture of a country that was quickly moving from the end of the Revolution to the start of the Civil War. He defended slavery and passed away in 1850. 9 D. Karmis, Les multiples voix, cit., 81. 10 Ivi, 95. On the importance of inclusion in pluralist federalism, see J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge University Press, 1995. 6 118 its origins reverberate throughout its history’11. For Dicey, ‘federalism is a natural constitution for a body of states which desire union and do not desire unity’, while for Elazar, federalism implies a combination of ‘self-rule’ and ‘shared rule’12. For Wheare, federalism refers to the ‘method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent’13. According to Robinson and Simeon, ‘federalism is about the co-existence of multiple loyalties and identities and about shared and divided authority’14. For Føllesdal, ‘federalism is the theory or advocacy of federal political orders, where final authority is divided between sub-units and a center. Unlike a unitary state, sovereignty is constitutionally split between at least two territorial levels so that units at each level have final authority and can act independently of the others in some area’15. To overcome a mere formalistic approach, Palermo and Kössler suggested that it is necessary for federal studies to look more carefully at policies, including how they are managed on the basis of legal norms and how they are interpreted by courts 16. It is no coincidence that it is precisely because of the variety of manifestations of the federal principle that Palermo and Kössler decided to proceed ‘without definitions17.’ On the basis of these considerations—and in the wake of an empirical approach18—the two authors also challenge the distinction between regional and federal states. In so doing they relied on the works of eminent scholars. For instance, according to Friedrich, studying federalism does not mean studying only federal states/federation. His understanding of the federalising process overcomes the distinction between Federal state (Bundestaat) and Confederation (Staatenbund), and he explicitly and strongly stressed this in his works19. The classical vision of federalism is founded on a very static approach and based on ideas of State and sovereignty which Friedrich heavily criticised: ‘No sovereign can exist in a federal system; autonomy and sovereignty exclude each other in such a political order20.’ In order to explain his point, Friedrich looked at how Germans interpreted the concept of ‘federal state’: ‘The American concept, at this point, may be called the discovery of the “federal state”, because that was the term which the Germans and others attached to it when they contrasted it to a confederation of states. L.M. Bassani, “Stati e Costituzione: il federalismo autentico di John C. Calhoun (1782-1850)”, Eunomia. Rivista semestrale di Storia e Politica Internazionali, 2015, 291, 292. 12 D. Elazar, Exploring Federalism, University of Alabama Press, 1987, 5. 13 K. Wheare, Federal Government, Oxford University Press, 1963, 11. 14 I. Robinson, R. Simeon, “The dynamics of Canadian federalism”, in J. Bickerton, A. Gagnon (eds.), Canadian Politics, University of Toronto Press, 2009, 368. 15 A. Føllesdal, “Federalism”, in E.N. Zalta (ed.), The Stanford Encyclopedia of Philosophy, 2018, https://plato.stanford.edu/archives/sum2018/entries/federalism/. 16 F. Palermo and K. Kössler, Comparative Federalism. Constitutional Arrangements and Case Law, Hart, 2017. 17 F. Palermo, K. Kössler, Comparative Federalism, cit., 64-65. 18C.J. Friedrich, Trends of Federalism in Theory and Practice, Pall Mall, 1968; A. La Pergola, “L’empirismo nello studio dei sistemi federali: a proposito di una teoria di Carl Friedrich”, in A. La Pergola, Tecniche costituzionali e problemi delle autonomie garantite. Riflessioni comparatistiche sul federalismo e regionalismo, Cedam, 1987, 123, 133. 19 C. J. Friedrich, “Federal Constitutional theory and emergent proposal”, in A. W. MacMahon (ed.), Federalism: mature and emergent, Doubleday and Company, Inc., 1955, 510. 20 C.J. Friedrich, Trends of Federalism, cit., 8. 11 119 Actually, no such dichotomy was ever faced by the master builders of the American system. They were, in fact, the first who realized, at least in part, that federalism is not a fixed and static pattern but a process 21.’ He went on to argue that ‘federalism should not be considered as a static pattern, as a fixed and precise term of division of powers between central and component authorities. Instead, federalism should be seen as the process of federalising a political community22.’ Traditionally, American federalism is seen as federalism par excellence. However, there are two caveats to be made: the first relates to the eccentricity of the US case with respect to the trend of federal systems. In fact, the growing importance of asymmetrical dynamics in the main federalisms23 at the global level has led to a relativisation of American centrality. Second, while there are undoubtedly US influences on the genesis and development of the Canadian system24, the latter—for reasons related in part to its ‘multicultural’ and especially ‘mixed’ character—represents an experience which is clearly distinguishable from American federalism and perhaps even more interesting from a comparative perspective. This also explains the success that the Canadian model has subsequently enjoyed. The years in which Wheare called Canada a ‘quasi-federal’ 25 system seem long gone. Wheare was right to emphasise the existence of some mechanisms (such as disallowance26) which seemed alien to a federal system on its own and which were also due to the particular genesis of Canadian federalism, which is trilateral27 insofar as it is the product of ‘concessions’ made by the British motherland28 well before the so-called amending power was granted to the Canadians. It is no coincidence that scholars tend not to use the category of constituent 21 C.J. Friedrich, Trends of Federalism, cit 18. 22 C. J. Friedrich, Trends of Federalism, cit .514. On the concept of asymmetry: C. Tarlton, “Symmetry and Asymmetry as Elements of Federalism: A Theoretical Speculation”, Journal of Politics, 1965, 861; R. Agranoff (ed.), Accommodating Diversity: Asymmetry in Federal States, Baden Baden, 1999, in particular see the essay by R.L. Watts, “The Theoretical and Practical Implications of Asymmetrical Federalism”, 24; F. Palermo, “La coincidenza degli opposti: l’ordinamento tedesco e il federalismo asimmetrico?”, 2007, www.federalismi.it/nv14/articolo-documento.cfm?artid=6991; G. D’Ignazio (ed.), Integrazione europea e asimmetrie regionali: modelli a confronto, Giuffrè, 2007; A.M. Russo, Pluralismo territoriale e integrazione europea: asimmetria e relazionalità nello Stato autonomico spagnolo, Editoriale Scientifica, 2010. 24 G. D’Ignazio, “L’influenza del modello statunitense”, Amministrare. Rivista quadrimestrale dell’Istituto per la Scienza dell’Amministrazione pubblica, 2002, 9. See also: P.C. Oliver, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand, Oxford University Press, 2005, 38. 25 K. Wheare, Federal Government, cit., 19. 26 ‘This conception of Canadian federalism is imperfectly embodied in the constitutional text, which contains a number of important features (such as the declaratory, disallowance and reservation powers) that are inconsistent with the federal principle. These features led K. Wheare to describe the Canadian Constitution as “quasi-federal”’, B. Ryder, “Equal Autonomy in Canadian Federalism: The Continuing Search for Balance in the Interpretation of the Division of Powers”, in The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference, 2011, https://digitalcommons.osgoode.yorku.ca/sclr/vol54/iss1/20, 575. 27 Ortino wrote of a ‘trinomial’ consisting of ‘Member States, central state and the Crown’, S. Ortino, Diritto costituzionale comparato, il Mulino, 1994, 396. 28 Albert refers to the Canadian Constitution as a case of ‘unconstitutional constitution’ and analyses its democratic foundations in a long essay: R. Albert, “Four Unconstitutional Constitutions and their Democratic Foundations”, in Cornell International Law Journal, 2017, https://scholarship.law.cornell.edu/cilj/vol50/iss2/1, 169. 23 120 power with reference to the genesis of the Canadian legal system29, seeing it as eternally suspended between two souls: one ‘Burkean’ and one ‘Lockean30.’ What are the essential elements of federalism? In order to overcome these definitional difficulties, Watts proceeded by ‘identification’ rather than ‘definition’, seeing the essence of federal systems in the following elements: ‘1) Two orders of government each acting directly on their citizens; (2) a formal constitutional distribution of legislative and executive authority and the allocation of revenue sources between the two orders of government ensuring some areas of genuine autonomy for each order; (3) provision for the designated representatives of distinct regional views within the federal policy-making institutions, usually provided by the particular form of the federal second chamber; (4) a supreme written constitution not unilaterally amendable and requiring the consent of a significant proportion of the constituent units; (5) an umpire (in the forms of courts or provision for referendums) to rule on disputes between governments; (6) processes and institutions to facilitate intergovernmental collaboration for those areas where governmental responsibilities are shared or inevitably overlap31.’ I shall now try to say a few words about each of these elements. All federal systems have experienced the inadequacy of a purely dual federalism which is based on a liberal vision of the relationship between centre and periphery. The US and Canadian federal constitutions reflect this approach, but over the years, the need to move towards a cooperative federalism has emerged32. This can be explained in light of the crisis of subject matters33, also known as cross-cutting subjects; that is, the impossibility of excluding the intersections between levels of government in certain areas. The complexity of policies, in particular, has led the most recent federal systems to rethink the way competences are described by explicitly providing for competences that are either concurrent or shared. Unlike more recent federal constitutions, those of the classical federal systems do not refer to intergovernmental relations simply because coordination between governments was considered under the dual federalism paradigm as hardly necessary. A clear division of powers with ‘watertight compartments’ was still considered feasible at that time. This also explains the importance of the principle of loyal cooperation or federal loyalty (referred to in various ways depending on the legal system at stake); for instance, Art. 143.1 of the Belgian Constitution states that ‘in the exercise of their respective responsibilities, the federal State, the Communities, the Regions and the Joint Community Commission act with respect for federal loyalty, in order to prevent conflicts of interest.’ Art. 44 of the Swiss Constitution is even more interesting as a classic federalism that has been subject to many adjustments: P. Russell, “Can the Canadians Be a Sovereign People? The Question Revisited”, in Stephen L. Newman (ed.), Constitutional Politics in Canada and the United States, Suny Press, 2004, 9, 15. 30 Ibidem. 31 R.L. Watts, Comparing Federal Systems in the 1990s, Queen’s University Press, 1996, 7. 32 R. Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law, Oxford University Press, 2009. 33 P. Carrozza, “Le ‘materie’: uso delle tecniche di enumerazione materiale delle competenze e modelli di riferimento del “regionalismo di esecuzione” in G. F. Ferrari and G. Parodi (eds.), La revisione costituzionale del Titolo V tra nuovo regionalismo e federalismo: problemi applicativi e linee evolutive, Cedam, 2003, 69. 29 121 ‘1 The Confederation and the Cantons shall support each other in the fulfilment of their duties and shall generally cooperate with each other. 2 They owe each other a duty of consideration and support. They shall provide each other with administrative assistance and mutual judicial assistance. 3 Disputes between Cantons or between Cantons and the Confederation shall wherever possible be resolved by negotiation or mediation.’ This provision opens a section entirely devoted to the ‘Cooperation between the Confederation and the Cantons’ (Arts. 44‒53). In other contexts, there are no constitutional provisions explicitly mentioning the principle of federal loyalty, but the case law of the constitutional courts has remedied this shortcoming, for example, in the German scenario34. The cooperative principle can be expressed in the form of cooperation by acts or by organs35. Cooperation can therefore take the form of mixed bodies, very often of an intergovernmental nature, or of vertical or horizontal agreements with a variable legal status depending on the system in question. In some cases, these agreements may be the subject of legal disputes, while jurisdiction seems to be excluded in others, as in the case of the Canadian Social Union Framework Agreement. In some jurisdictions, perhaps partly because of the difficulty of the amendment procedure mechanism, these intergovernmental agreements have been a way of updating the constitutional substance without formally amending the text. Poirier recalled the multiple functions these intergovernmental relations can perform: ‘Regardless of their status, however, agreements play at least five different functions: a) Firstly, and predictably, they are used to co-ordinate or harmonise policies between orders of government (who does what? who pays for what?). b) Secondly, agreements serve to manage process and procedure (how do they do it? how do they resolve disputes?). c) Thirdly, intergovernmental agreements can play a “para-constitutional” function when they are used to circumvent the formal distribution of powers, or to formalise a convention. d) Fourthly, agreements can be instruments of “regulation by contract”, when they are used as tools of centralisation under the guise of compromise and consensus, or when, regardless of the formal distribution of powers, a party “makes an offer” to another one which the latter “cannot refuse [...]”.) Finally, and in a related way, agreements are instruments of soft-law. Regardless of their legal standing, they tend to be negotiated, drafted and implemented by civil servants as if they were binding. This can be particularly problematic given the lack of parliamentary scrutiny which often surrounds their adoption 36.’ At the same time, these intergovernmental arenas also pose problems of transparency and represent a threat to the centrality of parliaments37. Vertical agreements serve the subnational implementation of national legislation and the coordination of government action in areas of concurrent power (e.g., immigration and integration agreements in Canada). Some federal constitutions are completely silent on such agreements (e.g., Canada), while others include only rudimentary references to certain types of agreements For a comparative overview, see: J. Woelk, “Systemic principle of Italy's regionalism?”, in E. Arban, G. Martinico and F. Palermo (eds.), Federalism and Constitutional Law. The Italian Contribution to Comparative Regionalism, Routledge, 2021, 170. 35 R. Bifulco (ed), Ordinamenti federali comparati. I Gli Stati federali ‘classici’, Giappichelli, 2010, 393. 36 J. Poirier, “The Functions of Intergovernmental Agreements: Post-Devolution Concordats in a Comparative Perspective”, 2001, http://www.ceelbas.ac.uk/spp/publications/unit-publications/75.pdf. 37 A. Benz, Jared Sonnicksen, “Patterns of federal democracy: tensions, friction, or balance between two government dimensions”, European Political Science Review, 2017, 9. 34 122 and include no general legal regime (Art. I sect. 10 of the US Constitution or Art. 105a of the Australian Constitution). How to give a voice to subnational units? First of all, subnational units must be given the opportunity to participate in the life of the Constitution by having access to the amendment procedure. This is essential to prevent the constitutional compact that grants powers to subnational units from being unilaterally changed by the central authority. Second, there must be a body that gives a voice to these entities, even with regard to general, nonconstitutional policies; hence, there is a need for a second chamber. The importance of bicameralism is also found in non-federal or regional contexts because an extra chamber allows for a banal fragmentation of power and an extra cushion in case of abuse. Consider the Hungarian case, in which there were two constitutional design factors that facilitated Orbán's rise: the absence of a second chamber and the absence of a Germanstyle eternity clause that prevents constitutional reform of certain issues. I would argue that bicameralism is one of the necessary techniques to rationalise political power, which of course harks back to the historical functioning of constitutionalism. Another important element in the Hungarian case is the absence of vertical separation as Hungary is a centralised state. This reveals much about the importance of federalism in the schemes of constitutionalism. In reality, there are various ways of structuring the second chamber. think of the American senate model, but the Bundesrat, for example, is not a senate, as their members represent the governments of the Länder with a binding mandate. In this respect, there are many nuances apart from the distinction between the so-called ambassadorial model (of a second chamber composed of ambassadors with an imperative mandate) and the senatorial model38. However, if we look at how senates function in many European legal systems, we realise that very often they have more and more come to resemble first chambers, reflecting in their composition more and more national parties. In Italy, the marginality of the regional parties and, above all, the perfect identity of functions between the Chamber of Deputies and the Senate (so-called symmetrical bicameralism) has led to the discussion over many decades of the need to reform the Senate. Another central aspect is finances, as competences have a cost when exercised and, therefore, a formal arrangement that does not correspond to a system of autonomous resources for subnational units can hardly be defined as federal. Finally, on the issue of conflicts, it is envisaged that an arbiter, usually a court (supreme or constitutional), would resolve issues between the centre and the periphery. Federal courts have traditionally alternated between jurisprudential phases more favourable to the centre (above all) and phases more favourable to subnational units. The choices encountered in comparative law can also be varied: in some systems, the members of the Constitutional Court are appointed by or in some way come from subnational units. The latter is illustrated by the case of Canada, in which three of the members of the federal Supreme Court must be from Quebec in order to adequately represent the civil law system (Canada is a mixed legal system39). All these mechanisms are helpful in order to prevent the Supreme Courts from being perceived as naturally hostile to the claims of the subnational units or as mere departments of the federal branch. In addition, legal systems sometimes provide for dispute settlement 38 F. Palermo, M. Nicolini, Il bicameralismo. Pluralismo e limiti della rappresentanza, Napoli, 2013. V. V. Palmer (ed.), Mixed Jurisdictions Worldwide: The Third Legal Family, Cambridge University Press, 2012. 39 123 mechanisms other than those offered by courts. However, I must stress that these mechanisms do not necessarily succeed in reducing conflicts in the system, this is because many conflicts brought before the constitutional courts may depend on reasons of visibility or differences of political colour between the majorities governing in the regions and the majority governing at the centre. The Spanish case of Art. 33 of the LOTC40 and the Italian case, in a more informal way, show us that there is no clear alternative between recourse to the courts and the role of negotiations; on the contrary, recourse to the courts is often used to have another round of pre-conflict negotiations. In some cases, the constitution's emphasis on cooperation is reflected in the fact that consensual solutions to conflicts are explicitly preferred. This is reflected in the fact that consensual solutions to conflicts are explicitly preferred over court litigation. In Switzerland, for example, ‘disputes between Cantons or between Cantons and the Confederation shall wherever possible be resolved by negotiation or mediation’ (Art. 44.3 of the Constitution). In South Africa, ‘an organ of state involved in an intergovernmental dispute must make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other remedies before it approaches a court to resolve the dispute’ (Art. 41.3). Supra-State Federalism Having given a general overview of the concept of federalism, it is now worth asking whether there are any conceptual obstacles to applying the categories of federalism to the post-state horizon. Between the 1950s and 1980s, a substantial debate concerning the ‘strategies’ of legal/political integration used by the European political actors arose in several comparative legal reviews and journals. During those years, many authors from both sides of the Atlantic compared their perspectives, and we still employ today the federal language used by these first commentators (pre-emption, incorporation, supremacy) when describing key concepts of European Union law. This article looks at the origin of such linguistic inheritance. This recourse to the federal language highlighted the importance of comparative law. This was clearly explained and theorised in a detailed manner in Integration through Law, a multivolume enterprise edited by Cappelletti, Weiler and Seccombe41. This comparative approach was later partially rejected (especially in Europe), and this is the reason federalism was for a long time treated as an ‘infamous F-word’ in European Studies42. Among the authors that could be considered for a paper such as this is Joseph Weiler. He employed many of the traditional categories used in American constitutional law to describe Community law. At the same time, he has always been very cautious in distinguishing between federalism and federal states. In 1968, Hay wrote about certain ‘federalizing features’43 of the common market treaty system, thus participating in the spreading of a 40 Ley Orgánica del Tribunal Constitucional n.2/1979. 41It is a multi-volume enterprise, but for the purpose of this working paper, I will look at: M. Cappelletti, M. Seccombe and J. H. H. Weiler (eds.), Integration through Law: Europe and the American Federal Experience, I, W. De Gruyter, 1986. 42 M.G. Puder, “Constitutionalizing the European Union. More than a Sense of Direction from the Convention on the Future of Europe”, Fordham International Law Journal, 2003, 1562 ss, 1583. 43 P. Hay, “Supremacy of Community Law in National Courts. A Progress Report on Referrals Under the EEC Treaty”, American Journal of Comparative Law, 1968, 524. 124 ‘comparative language’ and above all applying the concept of federalism to ‘supranational organizations’44. In his fundamental book Federalism and Supranational Organizations, he wrote that: ‘One of the important reasons for the success of European integration is the organisational form which it adopted for the three “European Communities”. Described as “supranational” [...] these organizations possess both independence from and power over their constituent states to a degree suggesting the emergence of a federal hierarchy 45.’ Even earlier, in an article published in 1963 in the most important comparative law review (the American Journal of Comparative Law), Hay wrote of an ‘imperfect’ federalism which ‘derives from the limited economic federalism of the organization need not change the characterization, especially since the developing case law may correct imperfection46.’ In his Federalism and Supranational Organizations, Hay found many analogies between federalism and supranationalism. The latter was defined as ‘a political quality rather than a power or a right’, identifiable on the basis of six ‘criteria’: ‘1) “Independence of the organization and of its institutions from the member states”; 2) “…the ability of an organization to bind its member states by majority or weighted majority vote”; 3)“…the direct effect of law emanating from the organization on natural and legal persons in the member states, i.e., a binding effect without implementation by national legislative organs”; 4)“…supranationalism, at least in its present European form, involves a transfer of sovereign powers from the member states to the organization”; 5)“…supranationalism depends on the extent of functions, powers, and jurisdiction attributed to the organization”; 6)“Finally, supranationalism has been defined in terms of the institutions with which the European Communities have been equipped. This suggestion does not draw support from the existence of a Council and a Commission because all international organizations which are more than mere treaty arrangements, alliances, or associations, must necessarily have policy-making or administrative organs or both 47.”’ According to Hay, supranationalism is connected to the idea of federalism because both concepts are based on a transfer of power from the State to a higher entity. He started from a dynamic notion of federalism without regard to the institutional form, and he distinguished ‘the federal elements from the international elements’. In his own words: ‘Federal” is therefore used in an adjectival sense: it attaches to a particular function exercised by the organization and is used to denote, as to that function, a hierarchical relationship between the Communities and their members48.’ Hay used the notion of ‘functional federalism’ in order to describe the jurisdiction/activity of the European Court of Justice (ECJ) and the relationship between national and supranational law. Such a formula might sound oxymoronic to a European scholar who is used to the contraposition of federalism/functionalism; nevertheless, Hay explained what he meant by 44 P. Hay, Federalism and Supranational Organizations. Patterns for New Legal Structures, University of Illinois Press, 1966. 45 P. Hay, Federalism and Supranational Organizations, 4. 46 P. Hay, “Federal jurisdiction of the Common market Court”, American Journal of Comparative Law, 1963, 21, 24 47 P. Hay, Federalism and Supranational Organizations, 31. 48 P. Hay, Federalism and Supranational Organizations, 90. 125 this formula when he clarified that his notion of federalism does not consider the institutional form of the organisation. Hay stressed here the possible gap between the federal functions of an organisation and its possible definition as a federation. In other words, his approach to federalism is a dynamic one and resembles that adopted by Friedrich49. As La Pergola emphasised, the relationship between federalism and the State in Friedrich’s thought is ambiguous. It sometimes seems as though Friedrich substituted the idea of State with the concept of ‘community’50 but—despite his polemical fervour—the state shadow remained in his argumentation. Despite these ambiguities, Friedrich’s criticism of the two pillars of constitutional law is very relevant today. In a way, Friedrich was part of the same intellectual atmosphere shared by other scholars of the time, including many other European law scholars based in the US, and is still endorsed today by many leading authors in this field. Thanks to the distinction between federation/federal state and federalism, one can understand Weiler’s consideration, according to which: ‘The Community is not destined to become another America or indeed a federal state. But I am convinced that the relevance of the federal experience to Europe (and the European experience to any novel thinking about federalism in the United States and other federations) will become increasingly recognized51.’ However, among comparative lawyers, the pioneer of such a comparative approach was undoubtedly Stein. Stein’s essays about Europe and America from a comparative perspective have been collected in the book Thoughts from a Bridge: A Retrospective of Writings on New Europe and American Federalism. The first part of this work contains the article ‘Lawyers, Judges and the Making of a Transnational Constitution’, which became a classic of European Studies with its very famous incipit: ‘Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with the benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe52.’ However, this was not the first piece in which he used the constitutional jargon to describe the effort of the ECJ. In his lectures at the Academy of International Law in The Hague in 1974, Oliver questioned the possibility of treaty-based federalism. Both authors devoted articles to this topic, inaugurating the debate on the nature of the original treaties (mere international treaties or 49 However, there is an important difference between Friedrich and Hay, represented by the concept of sovereignty. This concept has been challenged by Friedrich while it still plays a role in Hay’s definition of supranationalism. 50 A. La Pergola, “L’empirismo”, 133. 51 J.H.H. Weiler, “Eric Stein: A Tribute”, Michigan Law Review, 1984, 1160,1161. 52 E. Stein, Lawyers, “Judges and the Making of a Transnational Constitution”, American Journal of International Law., 1981, 1, 1. 126 European constitution?)53. This is just one of the examples, perhaps the most striking, of the influence that American doctrine has had on the construction of the special nature of the European Communities54. This kind of comparison was also pursued by the first pupils or colleagues of such masters who were fascinated by the intellectual charisma of Stein. This is the case of the Italian Cappelletti, Professor of Comparative law, and Italian Civil Procedural law. In 1986, Cappelletti was the editor of one of the most important editorial projects in EU studies. In the volumes of Integration through Law, Cappelletti—thanks to his bi-systemic teaching experience—gathered together many American and European authors in order to compare US/European federalisms and the European integration process. In the editors’ words, this work was ‘characterised as a highly pluralistic research endeavour… the product of the efforts of close to forty contributors from many countries in three continents, with almost every contribution being, in its turn, the joint product of a team55.’ The authors began to study the strong connection between the notions of federalism and integration, which were seen as ‘twin concepts56.’ Final Remarks: On the Constitutional Project of the FAEF The last considerations are devoted to the first draft of the federal constitution prepared by the Federal Alliance of European Federalists (FAEF). This text is clearly inspired by the US Constitution. It includes few articles and is based on the principle of separation of powers (horizontal and vertical). It describes a dual federal system without any reference to the cooperative principle (before the amendments proposed during the works of the Group 55+). This is a great challenge, but it perhaps underestimates the lessons from comparative law, namely that dual federalisms tend to become cooperative federalisms. This is a text like the original US text prior to its first ten amendments. It does not contain a Bill of Rights but refers to the EU Charter of Fundamental Rights and also, indirectly, to the European Convention on Human Rights. It is a very ambitious text that seeks to go beyond the state horizon and, in fact, requires popular, citizen ratification and seems to exclude the possibility of using international law as an engine for developing the system. In this respect, the FEAF constitutional project can be distinguished from the latest developments in EU law which, as we know, have often used E. Stein, “Treaty-Based Federalism, A.D. 1979: A Gloss on Covey T. Oliver at the Hague Academy”, University of Pennsylvania Law Review, 1979, 897. On that occasion, Stein commented on C. Oliver, “The Enforcement of Treaties by a Federal State”, Recueil des cours, 1974, 331. 54 On this, see: N. Aroney, “Federal Constitutionalism/European Constitutionalism in Comparative Perspective”, 2002, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=890789 55 M. Cappelletti, M. Seccombe, J.H.H. Weiler, A General Introduction, in M. Cappelletti, M. Seccombe, J.H.H. Weiler (eds.), Integration, 5. 56 M. Cappelletti, M. Seccombe, J.H.H. Weiler, A General Introduction, in M. Cappelletti, M. Seccombe, J.H.H. Weiler (eds.), Integration, 15. 53 127 international law to overcome moments of impasse in the integration process57; for example, the origin of the Dublin system or Schengen, which were pieces of EU law born as forms of international law and then incorporated. Finally, we can mention the more recent case of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, the so-called Fiscal Compact, which, in theory, should have been incorporated into EU law after five years58. On the one hand, this recourse to international law has given a certain flexibility to the system; on the other hand, it has caused a flight from the Treaties that has ended up widening the gap between what was promised in the post-Lisbon scenario and the actual ‘constitution’ of the EU (as the Court of Justice of the EU has been calling the EU Treaties since 198659). In this sense, we will just have to see if this ambitious project will become reality and if it can offer stability to the project of a real post-state federalism. B. De Witte, “Using International Law in the Euro Crisis Causes and Consequences”, ARENA Working Paper, 2013, http://www.sv.uio.no/arena/english/research/publications/arena-working-papers/2013/wp4-13.pdf 58 Art. 16 TSCG: ‘Within five years, at most, of the date of entry into force of this Treaty, on the basis of an assessment of the experience with its implementation, the necessary steps shall be taken, in accordance with the Treaty on the European Union and the Treaty on the Functioning of the European Union, with the aim of incorporating the substance of this Treaty into the legal framework of the European Union.’ 59 Court of Justice, Les Verts, Parti écologiste “Les Verts”, 294/83, European Court Reports 1986, 1339 57 128 The Federated States of Europe as a democratic state founded on the rule of law Frans Tonnaer Emeritus Prof. dr. Frans P.C.L. Tonnaer was inter alia a lecturer in Constitutional and Administrative Law at a number of Dutch universities, tonnaerfrans@gmail.com Introduction: the Federated States of Europe and the meta-rule of law "The Federation is a democratic state, founded on the Rule of Law. It consists of sovereign Citizens, democratic constitutional Member States, and a Federal Authority". With that statement, under the auspices of the Federal Alliance of European Federalists (FAEF), it makes clear the concept of a constitution for the Federated States of Europe (hereinafter: FSE) as the nature of this federal cooperation of European states right from the first Clause of Article 1. Not only does the Federation consist, in addition to free citizens, of democratic constitutional states, itself can also be qualified as a democratic constitutional state. What has been formulated here as facts is essentially a normative ambition. In constitutional law, there is little debate about what at least the characteristics of a state are to speak of a democratic state ‘founded on rule of law'. In short, the hallmark of a democracy is that the will of the people is the source of legitimate exercise of power. The rule of law is characterized by the protection of fundamental and human rights (1), the application of the principle of legality (2), of the separation of powers (3) and of an independent judiciary (4). It is important that these are not only 'paper' criteria, whether or not included in written form in the Constitution, but that these criteria are also put into state practice. The rule of law can only exist as such if it is supported by the citizens and the institutions concerned. When we talk about a 'democratic constitutional state', we think in the first instance of an individual sovereign state that meets these criteria. However, the considerations on this place concerns a federal state association and therefore a form of cooperation between different states. As an organization, the FSE pretends to be a democratic constitutional state. In the following I will check whether the FSE, as it finds its rules in the draft Constitution, meets the criteria for being able to speak of this. Or better: whether we can speak of the FSE, as a partnership of democratic states where the rule of law applies, can itself also be regarded as a democratic state where that principle applies. Is this the application of a 'meta rule of law'? First, in a separate Clause, the characteristic of the rule of law is discussed: the protection of fundamental and human rights, which I consider to be the most important cultural element, where these rights are placed in a broad perspective. Then I will deal with the other three characteristics, which can be regarded as structural elements, from which the principle of legality deals with the democracy aspect. I will pay brief attention to this aspect before concluding this paper with a summary final reflection. A. Constitutional and human rights as cultural elements of the rule of law 1. Human rights as elaborations fundamental principles of law When we are talking about 'fundamental and human rights', we usually think primarily of the international treaties in which they are incorporated and of the national Constitutions in which they have been adopted or supplemented. Most of these treaties were made in response to the barbarous events during the Second World War: "never again". In the wake 129 of the Universal Declaration of Human Rights (UDHR, Paris 1948), global treaties were concluded within the UN, such as the International Covenant on Civil and Political Rights (ICCPR, New York 1966), the International Covenant on Economic, Social and Cultural Rights (ICESCR, New York 1966) and later the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture, New York 1984), the Convention on the Rights of the Child (CRC, New York 1989) etc. At European level, this concerns the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by the Council of Europe (ECHR, Rome 1950) and the Charter of Fundamental Rights of the European Union (CFREU, Nice 2000). The rights enshrined in these treaties are widely regarded as beacons for a global civilizational offensive. While the Charter of Fundamental Rights applies to the EU as such, it is especially the ECHR that is seen as a guideline for developments at both European and global level, which has even broader effect than in the 45 member states of the Council of Europe. The 46th country: Russia was expelled from the Council of Europe on 16 March 2022 on the basis of a decision of the Assembly by unanimous decision of the Committee of Ministers because of the invasion of Ukraine. The Committee and the plenary of the European Court of Human Rights also decided that the ECHR would no longer be in force there. It are the Russian citizens, who have now been deprived of the right to challenge unlawful decisions of the Russian State, who will bear the brunt of this most, although the Russian State has ignored the court's rulings for years. The human rights contained in the treaties can be understood as elaborations of the fundamental principles of law, based on the suum cuique principle: 'Everybody his due'. I've worked that out in my publications from 20071 and 20212. In this context, some supporting concepts and principles were introduced, that are important here. And it is necessary for a good understanding of what follows to briefly touch on them. This is primarily the concept of the 'level of life' of the citizens in a (legal) community, being the combined levels of security of life and quality of life. In doing so, there is a distinction between the 'common' and 'individual' level of life. The first concerns the level established and pursued by the (legal) community, which can be expressed as the public or general interest. The second concerns the level of life determined and pursued by the citizens individually and therefore for themselves. As far as principles concerned, the starting point in my approach, in connection with the application of the suum cuique principle, is that justice relates to the way in which the individual and the common levels of life are realized. These demands therefore concern what should belong to everyone. The first fundamental principle of the law that can be formulated has to do with the relationship between two persons and implies that the individual level of life of one is not realized at the expense of the other (the non-laedens principle). 1 Ieder het zijne. Over de realisering van rechtvaardigheid. PMA/Iustitia Scripta, 2007. Rechtvaardigheid in beeld. Een structuur voor rechtvaardig handelen. 92 stellingen, Iustitia Scripta/Frans Tonnaer, 2021. 2 130 More important here is the second fundamental principle of law, according to which justice requires that the common level of life be realized for all members of the community. This means that the community – and the government as representing that community – must ensure that all members must be eligible for the defined level (the target range). So also minority groups and weaker members in the union for whom an extra effort may be needed. The third fundamental principle is consistent with this by stating that justice requires that all members of the community contribute to the realization of the common level of life to the best of their ability. Here it is especially important that the members contribute 'to the best of their ability', which may mean that there are differences in the expected contributions of citizens to achieve that level as a goal These principles were originally formulated with individual state communities in mind, but they can also be applied to supra-state partnerships such as the FSE. But first, in order to clarify what follows, it is necessary to put human rights as they apply in the aforementioned treaties into a certain structure. The figure below shows both the distinguishable levels of life and a division into subsistence aspects. 2. Structuring legal principles Below, a model is presented that is intended as inspiration for the development of legislation in the FSE on the basis of the human rights treaties. It can serve as a basis for assessing the legality of human behaviour and to assess the legality of laws and the implementation policy based on them. It is also an instrument for measuring the level of civilization in a community. The other criteria for the rule of law discussed below are also important for this purpose. The model can be used to assess the laws and policies of the FSE, as well as to assess and ensure the fairness of Member States' legislation and laws. On the basis of the human rights treaties, the following levels of human life and development and related rights and obligations can be distinguished. They are shown in the figure below: A boundary of existence (boundary level) (right to life) B human dignity (basic level) (such as the prohibition of inhuman or degrading treatment) C universal level of life (target level) (such as the right to an adequate standard of living) D development of existence (such as the right to the continuous improvement of living conditions). 131 132 The horizontal lines A, B and C indicate the different levels that can be distinguished, while the vertical arrow D is about the direction to a higher level of life. In a community, that amounts to a higher level of civilization. In addition, a dozen 'aspects of life' can be distinguished on the basis of the treaties: 1 integrity of the person 2 physical and mental health 3 personal security 4 environmental quality 5 social security 6 marriage and family life 7 liberty of movement, heart and home 8 work and profession 9 education and training 10 science and art 11 association and assembly 12 personal perceptions and expressions . The first aspects concern the security of life of people. As the figures increase, there are aspects of life that mainly concern the quality of life. This is only a general indicative approach that indicates the relationship between security and quality of life. Together they form what I call the ‘life's situation’. The idea behind this scheme is that, as the security of life is more assured, the need of people shifts in the direction of increasing the quality of life (the white curved line). All in all, this shift in the realization in practice leads to an increase in the level of life. One can consider this at the individual level, but can also see this supposed "natural law" as a collective, thus involving the increase in the level of life of the members of a community and thus in the level of civilization of that community. 3. Effects of human rights It is a mistake thinking that the rights and obligations of these treaties apply mainly to failed states or states in which human rights have not yet been fully developed or realized. The human rights referred to here can be regarded as missions for all state communities, both global and European (ECHR). They concern the 'essential' elements of national legal systems as developed in individual States and their partnerships and should be further developed. The latter is most clearly expressed in Article 11, first Clause of the ICESCR, which includes the right to continuous improvement of living conditions. That the protection of human rights, also in countries with a highly developed legal system such as the Netherlands,3 can be at issue, has been demonstrated by the 'Urgenda case' in which the Court of Appeal of The Hague in 20184 and the Dutch Supreme Court in 20195 on the basis of Articles 2 (Right to life) and Article 8 (Right to respect for private and family life) of the ECHR granted a claim in a climate case in which the Dutch state was obliged to tighten the standards for CO2 emissions. 3 The Netherlands scored the 6e place in the Rule of Law Index over 2021 (of 139 States). Court of Appeal 9-10-2018 ECLI:EN:GHDA:2018:2591. 5 Supreme Court 20-12-2019, ECLI:NL:HR:2019:2006. 4 133 In a high-profile case, the Dutch Supreme Court ruled in December 2021 that more than 200,000 objections against a tax assessment had been well-founded because the flat-rate levy was contrary to Article 1 of the First Protocol (Protection of property) in conjunction with Article 14 (Prohibition of discrimination) of the ECHR.6 In its opinion of October 2021 to the Dutch government on the application of the rule of law and the legal protection of citizens, the Venice Commission of the Council of Europe noted that, although the Netherlands generally had a well-functioning rule of law, in the so-called 'Child Surcharges Affair' shortcomings in the protection of individual rights had come to light that were called serious and systematic.7 But human rights issues also play a role in other current matters in developed states. For example, with regard to a possible vaccination obligation against the COVID virus, the tension with Article 3 of the Charter of Fundamental Rights of the European Union concerning the Right to the integrity of the person has been pointed out.8 For the German Bundestag, this was a reason at the beginning of April to reject the government's plan to require vaccination of people above a certain age. 4. Legislation in relation to human rights provisions Most of the rights and obligations in human rights treaties are not expressed in quantified, measurable, signifiable or otherwise objective terms, but concern abstractly formulated targeted rights of citizens and corresponding obligations of states. These rights and obligations can be seen as preconditions or frameworks for policy development within the state contexts on the basis of national legislation, which is usually the case. It is also possible to interpret them as central policy objectives for the state government. Although the latter will often not be the case, where this is at issue, national laws can be regarded as elaborations of the often abstract set of norms contained in these treaties. Then the rights and obligations of the human rights treaties form the substantive foundations of national laws. In that case, these laws must not only not conflict with the rights and obligations under the treaties (the marginal approach), but human rights must be regarded as normative instructions and guidelines to be concretized via national legislation. This is particularly relevant in constitutional provisions which set out citizens' rights and obligations or which relate to their adoption or enforcement. In most cases, laws have no explicit relationship with human rights. Then they come about in a parliamentary pacification process, in which agreement is sought between representatives and other parties in the approach and solution of social problems. In the legislation, the outcome of that process, then so to speak solidifies the policy. But even if human rights are not explicitly at stake, it may be important that such rights are reviewed in the legislative process. In the Urgenda case, it has become clear that even legally non-binding documents as forms of 'soft law' can still bind the state if they are placed in the context of human rights. The reduction target in the IPCC report did not in itself had legal status, but it was obtained 6 Supreme Court 24-12-2021, ECLI:NL:HR:2021:1963 (Capital return tax). European Commission for Democracy Through Law (Venice Commission), Opinion on the Legal Protection of Citizens. Strasbourg, 18 October 2021, Opinion no. 1031/2021. 8 Frank Stadermann. Een wettelijke vaccinatieplicht? Alle seinen staan op rood! Nederlands Juristenblad 5-11-2021, nr. 38, p. 3196-3197. 7 134 by declaring the duties of care of Articles 2 and 8 of the ECHR applicable to it. If this policy can already become legally binding in the light of the human rights provisions, then how much more can this be the case in practice with legislation, even if they are not intended to have any binding effect on the state or the citizens? Under certain circumstances, such legal provisions can still be seen as elaborations – or, if one wishes, a coloring in – of the provisions of the human rights treaties. I began this reflection by noting that the protection of fundamental and human rights is one of the four criteria for the rule of law and it is therefore a thing to be appreciated that the draft Constitution of the FSE (Article I, Clause 4) refers to the ECHR and the human rights to be adopted in the Charter of Fundamental Rights of the Federated States of Europe. Consideration may be given to providing in that Constitution (in Article VI), or in implementing regulations, for a body that carries out such a review of the draft laws of the Federation against the Constitution of the Federation and thus also against the aforementioned human rights. Starting from the proposition that the main objective of public policy is to ensure righteous social relations by means of the legal instruments, the fundamental principles of the law set out above, will always have to be observed. Not only in the case of legal regulations that are interpretations of the human rights provisions, but also in the laws in which the human rights provisions of the treaties are subject to preconditions. Moreover, this applies not only to the creation and substantive formulation of legal provisions addressed to citizens, but also to their application as administrative policy in concrete practice. The application of these basic principles must ensure that the policy is not only legal, in the sense that it is conducted in accordance with the legal regulations, but that it is also righteous, and that requires at least righteous laws. So righteous policy based on righteous laws. 5. The FSE as a rule of law in relation to the demands of justice Such considerations regarding just government actions apply not only to individual states, but also to the FSE which, as we have seen, explicitly presents itself as (democratic) state founded on the rule of law. This is reflected in the second Clause of Article I, which refers to the "equality of Citizens (...) before the Constitution", in the third Clause where, there is talk of "recognized powers of the Citizens", but especially in the fourth Clause which stipulates that the FSE sees in the natural rights of every living human being the only source from which recognized rights can be derived. Reference is made to the rights set out in the ECHR and in the Charter of Fundamental Rights of the FSE. It is also important to point out here that the words in the first Clause “founded on the rule of law” must be understood in a broad sense against the background outlined here. The policy of the FSE as a state founded on the rule of law should not only take place within the framework of its own legal regimes, but the legal regimes adopted by the FSE should also meet the requirements of the law with a view to righteous social relations. And not only do the requirements of the human rights treaties apply as preconditions or as a mission, but also – and rather: above that – the aforementioned fundamental principles of law must also be observed as requirements of justice. It is also important for the FSE to ensure that this is also the case with regard to member states' legislation and policies. It is true that Article VII, Section 3, Clause 2 stipulates that the 135 FSE will not interfere with the internal organization of the Member States, but it matters even more that the FSE in that Clause demands that those states are democratic states founded on the rule of law. It is important that the FSE has instruments at its disposal that can be used to monitor this, but that can also ensure that these requirements are met. This applies not only to the protection of fundamental and human rights as indicated above, but also to the other rule of law requirements that will be discussed below. B. Three structure elements While the criterion of the protection of fundamental and human rights is primarily of a material nature, the other three criteria used to speak of the rule of law, are mainly have an organizational character. Two of them (separation of powers and independent judiciary) relate to the organization of power and countervailing power and the third (principle of legality) is intended to guarantee popular influence in decisions that bind citizens. It can be said that these demands determine the structure of the organization that wants to be called as tot be founded on a rule of law, while the protection of fundamental and human rights has mainly to do with the culture of such an organization. 1. Separation and balance of powers The principle of the separation of powers has received due attention in the establishment of the draft Constitution of the FSE. In the preamble we already read that "the federal system is based on a vertical separation of powers between the Member States and the Federal Authority through which they share sovereignty”. The fact that there is also a horizontal separation of powers in the FSE follows in the preamble afterwards where it is considered that “the horizontal separation of the legislative, judicial, and executive branches both at the level of the Federal Authority and at that of the Member States is guaranteed by a solid system of checks and balances”. The Memorandum of Explanation thus clarifies this: “the ‘horizontal separation’ should be an ‘equally balanced qualified separation’ of authorities. These three powers are equal and interdependent in a triarch structure, balanced by a system of checks and balances”. And: “The horizontal separation of the three powers - the legislative, the judiciary and the executive - is not a specific feature of just a federal state but serves as an adage for any state that wants to prevent domination by one power”.9 So, of importance is not only the separation of these three powers but also the balance between them, which means that all three have an equal or comparable weight in the constitutional context. And then we mean the tasks and powers associated with the function, whereby the Explanation of the Preamble does acknowledge that there is a ranking: "the order should be: legislative, judicial, and executive. The legislative power is a strategic power (answering moral 'why'-questions), advised by the judicial power - a tactical power (answering cultural 'how'-questions) - that controls the executive power, which is an operational power (answering financial 'what'-questions)". 9 Explanation on Consideration of the Preamble IIe. 136 If one of the powers is dominant or corrupts with the other, then the rule of law edifice falters. What the consequences of not maintaining that balance are, now is seen in Russia where the President, as head of the executive, is not only dominant in parliament, but can apparently also influence the judiciary (Navalny conviction). We also see it in Poland and in Hungary where the dominant political parties (PIS and Fidesz respectively) not only interfered with the executive power of the president with the legislator, but also influence exercise in the appointment of judges. It is therefore important that Article VI includes powers of the Federal Judicial Branch that have to do with the enforcement of the separation of the three powers. The Memorandum of Explanation10 contains a detailed discussion of the arrangement regarding the vertical separation of powers in the FSE system. All in all, the principle of the separation of Powers is firmly anchored in the draft Constitution. 2. Independent judges Essential in the whole system is the guarantee of the independence of the members of the judiciary. This does not only apply to their work as members of the judiciary, but also to their appointment. That is ensured in Section 1, Clause 2 of Article VI which provides that “Judges, both of the Federal Supreme Court of Justice and of Constitutional Courts, are appointed by a Praesidium of Judges”. It also states: "In no case may the Legislative or Executive Branches influence the appointment of federal judges". Here it is important to be observed that the enforcement of this standard is ensured in the draft Constitution. That insurance belongs to the judiciary itself. However, it is unclear who can plead a violation of those standards to the judicial institutions. Only in Section 1 of Artikel VI can be read that “the Federal Supreme Court of Justice has jurisdiction in actions brought by a Member State, the powers on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Constitution or of any rule of law relating to their application, or misuse of powers”. 3. Legality principle The principle of legality, as an essential element of the rule of law, means that all government action must be based on legislation. The principle thus concerns the narrow interpretation of "the Rule of Law", which, in other words, means more than just that the law must reign. It also includes the requirement that there must be righteous laws and that fundamental and human rights must be protected. The principle of legality also means that, subject to exceptions, laws may not be applied retroactively. With regard to the latter, Section 3 of Article III under Clause 4 contains the provision that “No State is allowed to pass a retroactive law (...)”. Here, the first characteristic is especially important. This is intended to prevent the government from abusing its power by using it outside the law, and to that extent the principle also constitutes a limitation of government power. It is important that the legislation reflects the will of the people, which is the background to the principle of legality: the justice of government actions is promoted if they are ultimately aimed at realizing the will of the citizens to whom these laws apply. 10 Memorandum of Explanation Article I, Clause 3. 137 Although the principle of legality in the broad sense of the word is not included in the draft Constitution, Article II makes it clear that the legislation is in the hands of the people's representatives. For example, Section 1 in this Article states that "The Legislative Branch of the Federated States of Europe lies with the European Congress. It consists of two Houses: the House of the Citizens and the House of the States". Article III describes the powers and tasks of the legislative branche and Section 1, Clause1 states that "Both Houses have the power to initiate laws and to make all necessary regulations with respect to the territory or other possessions belonging to the Federated States of Europe". And Section 2 contains the statement: "The laws of both Houses must adhere to principles of inclusiveness, deliberative decision-making, and representativeness in the sense of respecting and protecting minority positions within majority decisions, avoiding oligarchic decision-making processes and preserving the value of diversity". That provision must therefore ensure that in the laws there is a genuine establishment of a 'common level of life' which is achieved for all members of the community, by also protecting minority positions and by ensuring that social positions are also protected and that justice is done to social diversity. Thus, an important legal requirement is met by means of this provision. A similar provision can be found in Section 1 of Article V on the Powers of the President and the Praesidium. Article VI, Section 3, Clause 2 finally provides that: “The Federal Supreme Court of Justice shall review the legality of legislative acts, of acts of the institutions, and of acts of the institutions, offices or agencies intended to produce legal effects vis-à-vis third parties”. It can be observed that in these provisions the principle of legality as such is not explicitly included in the draft Constitution, but that this principle has been incorporated into the elaboration. Below I will discuss the democracy aspect more in detail. C. The Federated States of Europe as a democracy 1. Representative democracy With regard to the FSE as a democracy, I can be fairly brief: there are sufficient provisions in the draft Constitution to guarantee that decisions are taken democratic. This has already been pointed out in the previous paragraph. Democracy, as I said in the introduction, implies generally speaking, that the will of the people is the source of legitimate exercise of power. It is clear that in the modern States, and certainly in a European Community at issue here, with such large numbers of citizens, citizens cannot participate directly in regular decisionmaking. That is why this decision-making takes place on the basis of forms of representative democracy. With a few exceptions (see in a moment), the citizens elect their representatives for this purpose. The proposed federal system is a combination of a directly representative and indirectly representative democracy. The first is the case with the House of the Citizens that is composed of the delegates of the Citizens of the Federated States of Europe. The following criteria are used:11 11 Article II, Section 2. 138 - - Each delegate has one vote. The delegates of this House are elected for a term of five years by the Citizens of the Federation who are qualified to vote. They can be re-elected once in succession. The size of the House of Citizens will follow the political and demographic development of the Federated States of Europe (min. 400, max. 600 delegates). Eligible to the House of Citizens are those who have reached the age of eighteen years. The delegates of the House of the Citizens have an individual and non-binding mandate. They carry out this office without a binding mandate, in the general interest of the Federation. The right to vote in elections for the House of the Citizens belongs to anybody who reaches the age of eighteen years. In addition, the FSE has a form of indirect representation in the House of the States, assuming that the parliamentary delegates delegated by the states are also elected. The delegation must meet the following criteria:12 - The House of the States is composed of nine delegates per State. - Each delegate has one vote. - The delegates are appointed for a term of five years by the legislature of their State’s parliament among its members. - They can be re-appointed once in succession. - Eligible to the House of the States are those who reached the age of twenty-five years. - The delegates of the House of the States have an individual and non-binding mandate that is exercised in the general interest of the Federation. But there is a third form of representation included in the draft Constitution, and that concerns the President and the Vice Presidents. They can be regarded as directly representing persons who hold the office. The draft Constitution states that "The President and the two Vice Presidents are simultaneously elected by Citizens of the Federated States of Europe on the basis of universal suffrage in which the entire territory of the Federation forms one constituency". The individual elections of the President and the Vice Presidents means that we can speak of a Presidential system as far as the constitutional form of the FSE is concerned. 2. Direct democracy The exception to the system of representative democracy in the Federation are some provisions on the application of the instrument of the Referendum. In Article V, Section 1, on the Powers of the President and the Praesidium, we find under Clause 8 the provision that the Praesidium organizes once a year a consultative referendum among all Citizen Electors of the Federated States of Europe. This referendum aims to obtain the opinion of the European people concerning the execution of the federal policy domains. Is this only a consultative referendum that does not have any binding consequences for decision-making in the Federation, this is different in the case of possible participation in a World Federation. When the World Federation invites the Federated States of Europe to 12 Article II, Section 3. 139 become a member, the Praesidium will organize a decisive referendum on the accession of the Federation to that World Federation.13 It is understandable that the FSE wants more coercive consequences to be attached to the decision of the citizens about participation in such a broad federation in which it then more or less merges. On the other hand, the reality of the expectation that such a federation will take place, must be questioned. There is also no mention of the way in which such a decisive referendum is organized and the way in which decision-making takes place about its outcome. That there is no great enthusiasm for the referendum can be seen from the part of the Explanatory Memorandum, on the House of the Citizens as part of the Legislative Branch which lists a number of problems that would arise if the instrument of the referendum were to be used. These problems are mainly related to the lack of dialogue between citizens, of weighing up pros and cons by them, of arguments presented and of justification for their choice.14 Concluding remarks After checking the generally recognized criteria of the democratic states, founded on rule of law, it can be concluded that these criteria have been properly elaborated in the draft Constitution of the FSE. I did, however, suggest that provision should be made in some way for the FSE bills to be reviewed against the FSE Constitution and, in particular, against the human rights included in the regulations referred to in Article I, Cause 4. I have highlighted the importance of FSE monitoring compliance with the rule of law requirements by the Member States of the FSE. I also noted that it is unclear who, apart from the Federal Supreme Court of Justice in actions by a Member State, can allege a violation of standards of judicial independence. However, the positive assessment of the draft Constitution with regard to the provisions on the democratic rule of law, does not mean that what I have called in the introduction a 'normative ambition', will also be realized in practice. For that, we have to wait for and work on the realization of the important and far reaching initiative to achieve a Federated States of Europe. As a variant of the well-known 'Bröckenförde-dictum', the dilemma of the rule of law can be described as the realization that "the democratic state founded on the rule of law lives from preconditions that it cannot guarantee itself".15 On this basis, it is essential for the establishment and maintenance of a democratic constitutional state, that a social ethos can be spoken of as a driving force. Of course, it cannot be imposed or enforced, but it can as a culture of self-binding, be stimulated. 13 Article V, Section 1, Clause 7. Memorandum of Explanation Article II, Section 2, Clause 4. 15 This constitutional law scholar was judge to the German Federal Constitutional Court. ErnstWolfgang Böckenförde (who died in 2019) used the maxim that “Der freiheitliche, säkularisierte Staat lebt von Voraussetzungen, die er selbst nicht garantieren kann” (“The liberal, secular state lives from preconditions, wich he self can not guarantee”). In: Die Entstehung des Staates als Vorgang der Säkularisation, Recht, Staat, Freiheit, erweiterte ausgabe, Frankfurt am Main, Suhrkamp, 2006, p. 112. 14 140 In order to prevent the rule of law from being eroded from within, as is currently the case with Poland and Hungary, it is important that there are mechanisms at work to prevent this. They should include the necessary incentives for the development and strengthening of such a shared ethos. In this context, it is certainly to be regarded as positive that an important provision has been included in the draft Constitution on two places. Article II, Section 2, Clause 4 provides that: “The House of the Citizens shall organize once a year a multi-day meeting with panels of Citizens to gather information on how to improve the realization of the Common European Interests as envisaged in Article III. The law shall determine how the Citizens' panels are composed and how they shall operate, (…) considering that the outcome of these meetings will improve and strengthen the policies on the Common European Interests”. A similar provision can be found in Section 3, Clause 3 of that Article where is to read that "The House of the States shall organize once a year a multi-day meeting with panels of delegates of the parliaments (...)". The application of these provisions will contribute to a shared social ethos necessary to carry a truly strong, righteous and balanced European State. Thorn (NL), April 2022 *** 141 ABOUT NUMERICAL, PARTICIPATORY AND COMPETENT REPRESENTATION This section deals with ‘representation’, seen from different perspectives. Lars N. Christensen introduces two topics of a numerical nature in the context of constitutional lawmaking: the concept of composing a parliament on the basis of dynamic sizing. And that of ranked voting in elections. The size of the federation in terms of numbers of citizens will increase as The Federated States of Europe becomes more populous. For this reason, the Constitution chose to cast the election of the number of delegates of the House of Citizens in the form of dynamic sizing. Another reason for this choice is the fact that this 21st century may show major demographic shifts. Not only because of migration but also because of structural shrinkage of population numbers. Ranked voting is an instrument that much more accurately establishes who the voters prefer than majority voting. Ivan Gil Carretero describes how important it is, in today's Europe of weakening democracies, led by the undemocratic EU-system, to work in principle and fundamentally to strengthen the regular representation of the people by means of citizens' input in the decision-making process. The Constitution provides for various forms of citizens’ participation. The fact that the Constitution is ratified by the citizens of Europe is the most pregnant example of this. In addition, the Constitution includes various forms of deliberative, direct and process-driven democracy. Peter Hovens emphasizes that the political office is the most important office in the world. Where the political office is absent, societies fall apart and autocrats take absolute power. To prevent this, building a strong federal house in accordance with standards of centripetal federalisation is not enough. Those who will live in that house - the members of the House of Citizens, the House of States and the Government - must be of exceptional quality in terms of ability and suitability. Hence, the Constitution requires that executive action be taken to regulate those persons who are deemed worthy of that political office. 142 Dynamic Sizing and Ranked Voting Lars N. Christensen Civil servant, programmer, and federalist lars@naesbye.dk Constitutions tend to be complex texts with differing levels of abstraction. They often exhibit a combination of broadly defined values, rights and duties mixed with very specific rules. Centuries of constitutional practice has found this to be a necessary blend. Here we deal with two subjects pertaining to the latter kind – dynamic sizing and ranked voting. 1. Dynamic Sizing Introduction The question of the right size of a parliament in a representative democracy is an old one. How many people do we need to effectively sort out the problem of adequate and just legislation? Too few, and the power risks abuse by a small elite and the complex issues risk getting only superficial treatment; too many, and fairly straightforward tasks may be delayed much longer than necessary and politicians may create unneeded regulation in order to justify keeping their seat. James Madison addressed part of this in Federalist #55: “The truth is, that in all cases, a certain number at least seems to be necessary to secure the benefits of free consultation and discussion; and to guard against too easy a combination for improper purposes; as on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude.”1 Some variables to consider The most obvious determinant is population size. The largest legislative assembly of a sovereign nation is the National People’s Congress of China of 2980 seats, and the smallest is the 14 member Congress of the Federated States of Micronesia. It seems almost ridiculous to point to the obvious correlation between the number of assembly seats and the size of both population and territory size of the governed. If we simply swapped the two assemblies, Micronesia would find it impossible to fill even a third of the 2980 seats, let alone give them meaningful tasks, and a nation calling itself a representative democracy with one seat for every 100 million citizens would raise more than a few eyebrows. Note that here I consider mainly the proposed single constituency in the FAEF draft constitution, where the entire voting population of a federation votes directly for a federal lower house, the House of the Citizens. Territory size and location certainly has an impact as well - nations large in area like Russia, Canada, China, and the United States tend to have their population spread over all of their 1 Federalist 55, https://en.wikisource.org/wiki/The_Federalist_(Dawson)/54 143 areas with big variations in demographics, culture and language as well as geopolitical issues which tend to require representation in excess of simple numerical calculations of population size. An example of location is the small nation of Denmark which has a disproportionate geopolitical impact simply because the much larger but sparsely populated Arctic country of Greenland is part of its realm and therefore a center of attention for big stakeholders in the area. The close proximity of North Africa and the Middle East to the European countries by the Mediterranean Sea also adds to the complexity of border and coast guard tasks, especially during refugee crises. There’s also a reason Israel spends 5.6% of its GDP on military, a reason it would probably not have if its closest neighbours were Iceland and Portugal. On the other hand, landlocked countries like Switzerland or Nepal do not need to regulate conscription of a navy, handling of goods in seaports, or worry much about international law of the seas. So various types of ‘geographical destiny’ can require more or less attention, resources, and competences at state level. Finally, a determining factor is the scope of responsibility - the breadth of tasks, or policy areas based on the size of the competence catalogue in the state’s constitution. In a federation with few competences there is less need for federal regulation, and as a result fewer members to sit in the legislative assembly and less need for oversight and general bureaucracy in terms of hands and minds. Some things seem to be necessary to include, as there are minimums to what a nation must have in order to be recognized and taken seriously as such2. An important part of this scope is the more loosely defined concept of involvement. An outward reaching country will establish more connections, sign more treaties and trade agreements, have more diplomatic affairs, and engage more in what EU officials call external action. A more isolationist policy will require a much smaller scope of responsibility. For a federated Europe, it seems part of its centuries old history and self-image is to be outreaching and seeking connections, so perhaps it is superfluous to mention this. But it is important to note that a nation which wants to ‘help save the world’ must devote much more time and resources to these kinds of policies than a nation that does not. And with these additional tasks come a bigger scope of responsibility, one that might however to some extent be delegated to civil servants. But such delegation still needs increased oversight and management. The Montevideo Convention uses a well-known brief definition in its Article 1: “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” 2 144 In summary: above a bare minimum for a state, population size, territorial size and location, and scope of responsibility, or “How many are we, where are we, and how many of our competences should we delegate to the federal government?” can be said to meaningfully influence the size of an assembly. The ‘cube root rule’ As for scope, we might be able to make some sort of rough estimate of how many competences are delegated by sorting governments into ‘small’, ‘medium’ and ‘big’ according to how many powers are given to the federal institutions. For the European federation involvement could be said to be high, given the ambitious goals in the Preamble. But how do we quantify the effects of location - the geographical destiny? Perhaps the number and length of land and sea borders are worth considering? Because, while an expansion of territory might add external borders to the federation, it might also in fact remove or reduce them along with a number of now redundant international relations transferred to the common federal government. This seems the most difficult to put into numbers. On the upside, simple demographic questions are easy to answer - how many citizens or voters are there and how big is our federation? But going from such metrics to the right parliament size is not easy. An observation in 1972 by Taagepera and based on communications studies was the ‘cube root rule’, that the size S of the parliament (or lower chamber in bicameral systems) tended to lie close to the cube root of the population size, so that S3≈P. This has never been a law or rule anywhere in spite of the name, apart from Taageperas input to his native Estonian parliament size. Moreover, it seems to apply best under the assumption of a state being developed and industrialized. Other studies have in later years tried to adjust the cube root rule to consider varying degrees of political participation, working-age fraction and literacy, so that only the workingage and literate population is counted when applying the cube root rule, as they are seen as the ‘politically involved’ 3. Newer research by Auriol and Gary-Bobo, later modified by Margaritondo, and based on similarities between large groups of interacting humans to thermodynamical system tends to rather point to a ‘square root law’, by which the optimal size of an assembly follows a near-square root development, more precisely 1/10 of the square root of the population.4 The studies also criticize Taagepera’s assumption that “each representative spends on the average equal times for communications inside and outside the parliament, an arbitrary hypothesis that has unrealistic consequences”. 3 For example https://www.nature.com/articles/s41598-021-93639-1 or https://aceproject.org/main/english/es/esc03.htm 4 https://www.frontiersin.org/articles/10.3389/fphy.2020.614596/full 145 Margaritondo arrives instead at a different correlation (here slightly simplified): If the population is the size P, and the fraction of this population which is politically involved k, then the assembly size A tends towards 𝐴 = √2𝑘𝑃. Well, how would this work if simply applied to the current EU population, assuming it turned into a federation overnight? Adult literacy is at nearly 100% - it was at 99,2% in 2016, the working age part of the EU population is 64,1% (2021), and the total population was 445 million in 2020. This would give us a parliament of 23.789 seats!!! Clearly this is practically unworkable, and I do not understand how this could even be proposed. Perhaps this was a result of the broader studies of populations around the world where a much lower literacy rate or working-age population would bring the number of seats down significantly. But we can’t use it. I played around with the variables over some time, and found it more satisfying to go back to the cube root rule and assume full adult literacy and that around 2/3 of the population would be politically active enough to engage with the parliament. In other words: 𝐴 = 3 √2/3 𝑃. This is in fact a cube root ‘fit’ to Taagepera’s original data set, provided by Margaritondo. With the 445 million in EU member states, the federal assembly would then be of 667 members, if we round to the nearest odd number to avoid ties. With a projected population peak of the EU population of 525 million by 20445, the parliament would reach 705 seats by then, which coincidentally is the current (2022) size of the EU parliament. After 2044 it would begin to shrink slowly again. This does in fact not at all sound bad when compared to the parliaments of other federations. Changing size dynamically All of the variables mentioned change over time, but most abruptly when a state enters or leaves a federation, and so should the size of its assembly if the changes are of consequence to the functioning of parliament. The same applies to possible major demographic developments: the expected decline in the size of Europe's population near the end of the century (2075) and the unpredictable movement of migrants. Some federations - like the United States of America - have since their formation grown considerably in population, territory and external borders, including territories not part of the mainland like Guam and Puerto Rico. Several European countries are already familiar with non-contiguous territories located far away which add to the geopolitical sensitivity when incorporated, and subtract from it if they achieve independence, even if their population is small. In a young European 5 https://ec.europa.eu/eurostat/web/products-eurostat-news/-/DDN-20190710-1 146 federation, we can expect the same to happen as Europe gradually sorts out how many will choose to federate. We can observe that resizing of federal assemblies like in the US seems to happen upon greater territory changes, but not when changes happen to the other factors. In the US, no change in size has happened since 1911, even though Alaska and Hawaii were added since and the general ratio of population to seat has increased by over 150%. Apportionment of seats may follow demographic developments, moving seats from one constituency to another after a census, but the total size tends to not deviate. This tendency can over the course of decades of population change deviate from the optimal functioning, and so it might be worth considering exploring this further. It seems far too easy for an assembly to decide not to ever change its own size for other reasons than major territory changes which tend to require a referendum as well. Getting closer to a workable method So, can we collect these observations and principles into a formal method or process for setting the parliament size dynamically? Maybe not fully, but we might be able to express them a little clearer as a guideline. 1. There should be a stipulated minimum size of an assembly, so it cannot decide to concentrate power too much in the hands of few, cf. Madison. This minimum should be based on the scope of responsibility (competences and involvement) and the territory size and location (regional and cultural heterogeneity and ‘geographical destiny’). If the federation needs at least 9 member states, a suggested lower minimum could be 175 seats, again an odd number to avoid ties. 2. There should also be a stipulated maximum size of an assembly, so the multitude of the interactions doesn’t hamper efficient legislation, also cf. Madison. This upper limit might even be somewhat universal for democratic assemblies and perhaps 705 which is the current European Parliament size is workable as an upper boundary for a European federation. 3. As long as we stay within these two boundaries, total population size should be the major determining factor. The ‘cube root rule’ and ‘square root law’ can perhaps find their use in determining where the right place between these boundaries lies. So far, the cube root approximation indicated by Margaritondo seems the best - the cube root of two thirds of the total population. It might seem like a bad thing to write a mathematical formula into a Constitution, to dismiss it as ‘nerdy’. And perhaps it is better to write such things into an electoral law to allow for proper adjustments. But the limits should not be easily modified outside a constitutional change. In the FAEF constitution, a fine example of dynamic sizing is introduced in Article 2, Section 2: 147 “The size of the House of Citizens will follow the political and demographic development of the Federation. If the population of the Federation does not exceed four hundred million, the House of the Citizens will consist of four hundred delegates. Should the population exceed 400 million, the number of delegates will be increased by 20 for every additional 25 millions of population. In any case, the total number of delegates of the House of Citizens will not exceed six hundred.” With a lower limit of 400 seats, an upper limit of 600 seats, and the size set proportional to the population size, this seems like a sensible frame for a parliament. If the federation will count among its members several of the populous EU states such as Germany, France, and Italy, this may even place it quite close to general formula proposed here. 2. Ranked voting Introduction One of the most direct actions a voter can do in a representative democracy is to cast their vote in free and fair elections. Faced with a list of candidates for an executive (like a president) or legislative position, the voters must choose according to their personal preferences. In most elections, the voter casts exactly one vote for either a person or a party list, and this vote is then counted according to a particular set of rules. These rules can be complex and involve electoral alliances (cartels) and various methods to distribute seats. If the decision must lead to one winner - maybe a president or a chairperson - often the candidate with the most votes simply wins, no matter how many candidates there are. In some cases, like the French presidential election, if no candidate has an absolute majority, an extra round between the two most popular candidates is called - and here a winner is guaranteed. The problem with this kind of procedure is that a voter’s wishes might not be easily expressed with just a checkmark, even in two rounds. In the 2022 French presidential election, the two top candidates Macron and Le Pen only got 50,9% together in the first round, and the margin between nr. 2 (Le Pen) and nr. 3 (Mélenchon) was 1,1%. After the first round, news reports surfaced of disenfranchised young people choosing to avoid voting in the upcoming second round altogether because they feel ‘the system is broken’. The turnout in the second round was as a result lower than normal. Another side-effect of simple voting is that voters tend to limit themselves into tactical voting rather than based on their more complex preferences. So, what if they could be given the opportunity by the system to be much more precise? Would they not feel that the system is no longer broken? Getting closer to voter intention 148 The point of an election in a representative democracy is to gauge the current opinion of an electorate by their submitted vote and provide an outcome as close to the center of the voting population’s intention and then put the right people in a position of power. This is not always the case with simple majority voting. Ranked voting is an umbrella term for systems where the voter can rank candidates in order of preference. A ballot gives the possibility to put numbers beside the candidates if they so choose. This ranking is then considered when the outcome is calculated. Anyone who has cast their vote in an election will testify that they have results they would prefer, results they would avoid at all costs, and results that they can live with. This system has the advantage of also factoring in candidates that people would find acceptable, and who they would prefer very much to keep from office. Under ranked voting, a voter can put numbers in the ballot box, ranking as many as they like from most preferred to least preferred. They can rank two candidates equal, and unranked are considered least preferred. The power of this voting method is that it allows for more precision, but it does not require it. If a voter wants to vote in the traditional way, they can merely put an X next to their favorite candidate and leave. This is the same as putting a ‘1’ to this candidate and ranking all others below that person. In many cases, and especially when electing a leader whose job description includes ‘uniting the people, ‘breaching divides’ or however we may describe the task of leadership of a nation, ranked voting can help to not only ensure that the winner is someone who is positively backed by a large part of the population, but also that they are not loathed by a too large other part of the population - simply because the people have had the opportunity to express this within the system. A very simple example to illustrate the many options could be as follows: Five candidates run for the office of president of ‘The Federated States of Europe’: Agnes, Boris, Carlos, Diana, and Erykah. We look at some voters’ thoughts and their options. The first voter wants Erykah to win and does not care about any others. He puts a 1 or an X next to Erykah like in any other election and leaves the rest empty and submits his ballot. His preference is interpreted like this: E > {A, B, C, D}, so Erykah is preferred over all the others. The others are ranked equally between each other, but below Erykah. The second voter is more of a negative voter. She feels that the worst scenario would be if Carlos wins, and so she just wants to make sure he does not win – anyone else will do. She puts a 1 or a X next to Agnes, Boris, Diana and Erykah. Her preference is interpreted like this: 149 {A, B, D, E} > C, so everyone is preferred over Carlos. They are not ranked between each other. Our third voter has done a lot of thinking. She would prefer that Boris wins, that Agnes is her second choice, and Erykah must not win. Carlos or Diana she would not be particularly happy about, but Erykah must not win according to out voter. She puts a 1 next to Boris, a 2 next to Agnes, a 3 next to Carlos, and a 3 next to Diana. She can put a 4 next to Erykah, but since unranked are always counted lowest, she does not have to. Her preferences are interpreted like this: B > A > {C, D} > E. I hope this illustrates the multitude of voting possibilities. When the voters’ preferences are to be put together, all these rankings are considered. And here is perhaps the only real downside: managing this complexity will most likely require computer systems to calculate a quick result, as it is normally expected by the population to have an answer the next morning. Therefore, I would suggest something very radical in addition to the adoption of ranked voting: that the votes cast become public data sets, so everyone can choose to go through the results themselves. Of course, anonymized, but there must be transparency with regards to the methods of representative democracy. This will also provide statisticians with a phenomenal insight in the political preferences of a large population. There are many variants of ranked voting methods which can be applied to ‘The Federated States of Europe’ but I would like to point to some modern methods developed by Markus Schulze who have found popularity in many academic and technical organizations – but so far in no large states. The methods exist both for single-winner situations like presidential and for determining multiple winners like in parliamentary elections. The details of these methods are described well on Wikipedia under the articles “Schulze method”6 and “Schulze STV”7, STV standing for Single Transferrable Vote, a broad term that has recently been suggested for the US House of Representatives under the Fair Representation Act8. A popular example - ’les douze points’ While the mathematical complexity of handling the many preferences is easily solvable computationally, there is however a myth of conceptual complexity - that ranked voting is too complicated for the electorate, and that a ranked system would make people feel overwhelmed at the options. And if they do not understand it, they will not accept it as fair, and this would create a feeling of illegitimacy which would threaten the democratic foundations. 6 https://en.wikipedia.org/wiki/Schulze_method https://en.wikipedia.org/wiki/Schulze_STV 8 https://www.congress.gov/bill/115th-congress/house-bill/3057 7 150 But this is clearly wrong, because every year millions of Europeans vote in a massive election with a ranked voting system, and the complaints about the system are few and far in between. Bookmakers announce who they think will win, and on the big day the result is counted live on television and at the end applauded or lamented, depending on what individuals hoped for. I am of course talking about the Eurovision Song Contest. Granted, the people vote by proxy in national constituencies, and there has recently been introduced a pseudo-’electoral college’ with national expert juries accounting for 50% of the votes, but the basic premise is clear as far as ranking goes: ESC can be said to use a form of ranked voting. If people can accept that this type of competition is resolved through ranked voting, why not elections? What is the fundamental difference? If FIFA is the big popular example to explain to others the power and logic of federations, then ESC might indeed serve as an example to educate people on ranked voting. In The Federated States of Europe, ranked voting could be applied to the presidential election, to the election of the House of Citizens, or both. Summary I have here introduced two concepts that I find to be of good use to building a modern nation. They can serve as tools for democracy, improving the systems handed over to us through the centuries. If they are adopted in The Federated States of Europe and prove to be significant improvements over the years, they may also serve as inspiration for other federations in the world. *** 151 Citizens’ Participation Ivan Gil Carretero Senior Digital Manager, ivangilcar@gmail.com Introduction Many of the democratic systems which were formed after the WWII are now facing a crisis of credibility and trust between those who are called to yield power into the framework of representative democracy. Never as today the act of voting in free elections has been so devaluated. Citizen’s participation has become a phantom that joins its path to the mechanisms of representative democracy giving rise to a series of paradoxes into participation and decision making. Whether and if so, the undemocratic nature of the European Union's treaty system is one of the causes of these weakening democracies is beyond the scope of this brief study. But that a federal government for Europe should have an eminently democratic legal basis seems to me to be beyond any doubt. Nowadays we are facing a new power configuration within some countries of EU where the separation of powers is being diluted into verticality reducing citizen’s participations to act on material laws and decisions. This new status quo where elected representatives can build a new meaning on principles like nation and welfare without really being controlled or evaluated on their policies is a serious menace for democratic principles and even peace in the long term. It has to be necessarily understood under the logic of audience democracies where the power of information and agenda makers can go even beyond of misinformation but to create disincentives for participation. This scenario can be even more clear if we look into the IT possibilities and new ways of virtual participation that can be tested nowadays. It has never been so easy to set up participative processes having in mind that one of the assumed needs for having representatives has been always related with the difficulties on setting up electoral process where citizens can interact more directly within the decision-making policies. Network society is bringing examples on a local level where citizen’s participation goes beyond the mere election, (i.e Swiss referendums to provide city cards for undocumented migrants or temporary workers) but we cannot neglect the economic and social aspects of domination or uncritically accept the structures of liberal democracy. Its huge dependency to representative democracy is visible specially on a supra-national level, creating an open path for the degradation of key democratic principles like control of power and influence in decision making. A new concept of participation is needed to get benefits from the technology, and use reduce the gap between citizens and final decision which are at the moment under the 152 control of an ‘audience democracy’ where the frames of policies and incentives have been kidnapped by corporate and elite influence over decision-making and legislation. Accountable representatives One of the main aspects on democracy’s crisis is the perception of lack of accountability and a silent trend of strengthen executive powers specially on those decisions where nondemocratic or non-elected institutions have the possibility to influence and pressure governments with even a more direct approach than the citizens who at the end gave the power in the name of national sovereignty. Probably this is one of the main paradoxes that federalism and participation need to bring into debate, how to close the gap between the election spectacle and the accountability of the policies behind those events. Are there any other ways for citizens to have control over the structures and forces that shape their lives? After decades of democratic uses and development, it looks that this basic question is stuck in the same problem, as representatives are not formally tied to the wishes of the electorate. Only the polls and media have the instruments to create pressure or make the governments accountable, and for sure it is not the decision-making policies which are behind the exercise of undemocratic power. There are seven key reasons why an increase on citizens participation and control of power can help to recover trust on democracy: 1. Better policy outcomes because deliberation results in considered public judgements rather than public opinions, resulting in informed recommendations about issues. 2. Greater legitimacy to make hard choices. 3. Enhance public trust in government and democratic institutions by giving citizens an effective role in public decision making. 4. Signal civic respect and empower citizens. 5. Make governance more inclusive by opening the door to a much more diverse group of people. 6. Strengthen integrity and prevent corruption by ensuring that groups and individuals with money and power cannot have undue influence on a public decision. 7. Help counteract polarization and disinformation. Gap between representatives and represented citizens Liberal democratic systems in the European Union are getting through a moment of reformulation on their one-time vision to export political rights tied with the counterbalanced powers. Instead of that, citizen’s participation has been standardized into a series of elections forgetting about any democratic process. The gap between decision- 153 making and support from elections is becoming bigger enough to think about more direct approaches where represented citizens can put pressure into binding instructions, affording them to direct input into legislative process and prohibiting elected officials from reneging on campaign promises. For that, a new perspective and integration of process assuring ‘imperative mandates’ can be of great value to reconnect the decision-making process between represented citizens and representatives’ officials. The creation of new ways to make representatives accountable and give citizens a real say in their democracy should be part of the constitutional arsenal and can only be implemented through new counter powers created from new constitutional process where principles can be reformulated and integrated into the formal law. Direct democracy and deep state We cannot forget about the fact that a new frame needs to be taken from those aiming to go into more direct ways of participation activating principles like the imperative mandate. Currently the social and political frame is designed to present any mechanism which unhide and counterbalanced power as a potential risk for stability. On that we should remember the different tactics behind excessive presidential powers to create consent about the risk of not having a concentrated power for the decision-making. That should not be a stop, as the key aspects of citizens participation on a federal organization is the evaluation and control of the given powers, which can be only justified for a short period of time and for some specific goal. In a world where information runs faster than ever the exercise of power needs to adapt also into a more flexible and moldable decision-making process. In order to strengthen these processes, technology and virtual society must play a central role providing vertical and rigid political systems with tools where citizens interaction can be part of the creation of consent from an active approach instead of being a result of mass media agenda. The political rights of Europeans citizens with respect to the European system have been limited to the right to vote and to stand to European elections (Articles B TEU and 8 ff. ECT). Public debate in Europe has been influenced by a relatively high number of referendums on European issues. Since the adoption of the Maastricht treaty there have been different citizens involvement has been part of many debates trying to understand , however only indirect or non-binding channels for the participation of citizens have been implemented so far. The right momentum in terms of opportunities structures might have come. Opportunity for a new wave of POS and NEP Theories on Political Opportunity Structure (POS) indicate that political participation is determined by institutional context. The impact of institutional structures has been largely correlated with the voting turnout but Non-Electoral Participation (NEP) has not received the same attention. Due to the actual crisis, new political opportunities for models of citizen participation are coming into discussion. The conditions for conventional (electoral) and unconventional political participation have changed in the last decades due to the increasing role of media in politics, and the decline of party control over the voters, these changes tend to enhance both electoral and non-electoral forms of participation. 154 Between the different scenarios that might result from the current democratic crisis, there is a risk to refold citizens participation (as well as rights) towards autocratic systems where the deep state can reconfigure its power into a vertical decision-making where information flow is tightly controlled in alliance with media and judicial powers. At the same time, new opportunities for citizens participation on substantive politics taking the agenda over with informal procedures and dominant strategies. For that, it will be needed new ways to communicate in order to create debate and judgement directly from the citizens who are affected from the material results of the decision-making, giving a subsidiary place to the story tellers on conventional politics. In an age that is often defined by ‘polarization, populism, and pessimism’ the future of public governance and federal systems are prominent concerns. In its Greek roots, ‘crisis’ – or krisis – means decision, a turning point. In this time of complex change, current democratic and governance structures are failing to deliver. Arguably, there are different drivers of this trend: economic; cultural; political, technological, and environmental. In OECD countries only 45% of citizens trust their government, this figure has risen from a low 37% in 2013, but it is not necessarily a reason to celebrate. Trust levels vary from above 70% in Switzerland and Luxembourg to 20% or less in Greece and Latvia (Source: OECD, Innovative Citizen Participation and New Democratic institutions: Catching the Deliberative Wave). Citizens’ participation is tightly related with the channels of communication and hegemony discourses which are penetrating the deliberative process on populations ending on the election of representatives. The current scenario of crisis and development of technology and individual empowerment can play an important role to create and empower direct ways of participation. Direct 155 participation needs to be explored and added to the agenda of any federal state, as we can see on the cases of Switzerland or municipal initiatives in Spain. Democratic societies face a wide set of challenges, which require different methods or resolution on participation also having in mind some limitations like the decision-making to solve urgent decisions. In order to strengthen citizens participation, different democratic problems need to be brought into debate, as it happens with the equality-participation-deliberation trilemma. As James Fishkin (2009) has identified, there is a trilemma of democratic values – (political) equality, (massive) participation, and (meaningful) deliberation. They are equally important for democracy, but extremely difficult to acquire at the same time. A flexible and efficient problem solving approach will be needed before configuring citizens participation on the supra-national level. Models and instruments of direct democracy One common factor between the mentioned political opportunities opened by the actual crisis on democratic values is the need to find new forms to bring representative institutions closer to the deliberative process coming from citizens participation. As example to liaised parliaments and citizens participation, some political systems use instruments like initiatives and referendums. In the case of Switzerland, 100,000 signatures are needed to amend the constitution with the optional referendum against new laws passed by parliament, 50,000 valid signatures must be collected within 100 days of publication of the new legislation. All constitutional amendments approved by parliament are subject to a mandatory referendum, electorate are also required to approve membership of specific international organizations. These instruments are also part of other EU states, like popular initiatives which appear regulated into many other constitutions of EU states although in many cases only serve to underpin the power of legislative branch which are control by party discipline. In spite of examples and instruments, use of technology and changes on how the agenda frame is configured between citizens to organize their deliberative process is even more important on the mid-long term. Instruments can be different depending on the history behind institutions and how democracy has been developed, which makes that each state will need to approach through their own instruments a set of common goals on citizens participation. It is on the pressure that new deliberative processes can bring to the principles of decision making: o more elections, o a continuous evaluation of the decision-making where representatives are tied to specific actions and evaluated out of the media and electoral process, o use of referendums, o strengthening popular initiatives, 156 o development of democracy on network society having a focus on education within human rights and citizens values, o creation of incentives for participation, o evaluation and control of decision-making out of the ‘audience democracy’ o can be just some of the aspect to collect in order to take the current opportunities on citizens participation which are now being generated by the current crisis on values and trust on the liberal democracies born after the II World War to develop their principles. Constitutional commitment towards direct participation Participation and control on material power have been developed through different phases and frames within European states. The fact of being too dependent on the formal legal framework from each country or nation can be now perceived as a burden that slow down citizens voices to disincentive and indirectly force the acceptance of ironclad processes in the exercise of power. Today more than ever, a connection between citizens and effective political decisions is needed. Its legal configuration within the current framework will require a constitutional setup from the top of the different political systems within the EU. The federal constitution integrates participation from the very beginning as its ratification is open to all citizens with the right to vote. It aims to integrate common European interest and values on sovereign identities within a new political frame where citizen participation is really taken as one of the fundamental pillars for which new methods and processes are presented having in mind the possibilities offered by technologies and network society. FAEF’s federal constitution is formulating innovation in the areas of citizen participation with an explicit mention on its principles. Gap on representation between people and states can be not be an excuse any more to justify status quo on decision making. Opportunities to develop instruments and tools of participation have been now included to build a federalist ground with direct impact on citizens life and mechanism for change. 157 A fundamental new look at the requirements for holding political office Peter Hovens Alderman, public administration consultant and treasurer of FAEF, peter@faef.eu Introduction Politicians hold a different position in a dictatorial or oligarchic system than in a democratic one. In the latter system, they do not merely have to follow the political top, but have their own responsibility. This gives them more freedom to act, but also the obligation to relate properly to the citizens. It is precisely the latter that makes the profession of politician not easy. Politicians bear an enormous responsibility; after all, they have to take decisions on behalf of a large number of fellow citizens which affect them directly or indirectly, and which therefore affect the freedom of citizens by means of legislation through commandments and prohibitions. That is why Klinkers says that politics is the most important office in the world.1 What worries me is that the politician's profession is subject to erosion, it is declining, the number of people who are prepared to step out of the box for the public cause is decreasing, confidence in politics is falling. We can see this in the declining number of citizens who are members of political parties and in the number of voters who are prepared to vote in elections. Could the declining confidence have something to do with a reduction in the quality of politicians? If so, we are in a vicious circle, because the pool from which politicians have to be drawn is becoming smaller and smaller. The question then arises as to whether we have any possibilities of turning this situation around radically. This poses another question, namely whether it makes any difference to politicians whether they have to function in a federal system or in another (democratic) system. Is there a difference between politicians in a centralist oriented state like France, a decentralized unitary state like the Netherlands or a federal state like Germany? Conducting politics in a federal structure In a federal structure, sovereign states cooperate in a limited number of policy areas on the basis of responsibilities, powers and resources entrusted to them by the states. For the rest, these states are masters in their own right and there is no interference from the federal level. The structure and the related agreements have their legal basis in a Federal Constitution. What is special about the Constitution is that it has been ratified by the people. The preamble therefore begins with these words: 'We, the Citizens of Europe, ...'. The latter is perhaps the most characteristic of a federation. It comes about from the bottom up, it starts with the people because of the principled choice to take the phenomenon of 'popular sovereignty' as the basis for the organisation of a modern society.2 1 Leo Klinkers, Vakvereisten voor Politiek en Beleid, Geboden en verboden in alfabetische volgorde, KPPC, Meise (2002), p. 155. 2 Compare this with today's EU with its treaty status. The division of responsibilities is a hotchpotch, the people are nowhere to be seen and the parliament is silenced. 158 The fundamental idea behind building the federal structure from the bottom up comes from Johannes Althusius. He lived from 1557 (Diedenshausen) - 1638 (Emden). Althusius was a Calvinist and therefore you would expect him to consider God as the sovereign. However, he was of the opinion that the highest authority comes directly from God without a worldly ruler in between. This is in line with the Calvinist doctrine that says that God has made a covenant with the People. Popular sovereignty is derived from the sovereign God. Althusius thus makes the People the basis of Society and not the individual. For Althusius, man is by definition a community being. It is all about symbiosis, living together. He follows in the footsteps of Aristotle (politikon zoön, a being that lives in a community). Aristotle believes that every human being should strive for happiness. A person can only achieve this within a community. The idea that the masses - and not a few good people - should be sovereign (...) may seem true. For although each individual from the mass is not a good person individually, it is possible that when they come together, they are better - not as individuals but collectively, just as a meal contributed by the whole Community is better than one paid for by a single person.'3 Althusius thus says two things, adding an important aspect to Aristotle's fundamental rule: 1. Sovereignty belongs to the People; 2. Man is a community being.4 He elaborates this line of thought in his famous work from 1603 Politica Methode Digesta.5 Society as a social organism It is interesting to see how Althusius views Society. He sees it as a social organism consisting of several layers. He calls such a layer a consociatio, as a family, a street, a neighborhood, a municipality, a province and the state. Each layer is in itself an organised social life based on mutual communication, a social contract between all those involved. The idea is that everyone within such a consociatio makes an active contribution. In this way, all those involved can benefit from such a community. The different layers are thus connected to support and help each other. Within each consociation there are rules that serve as a social contract. Without such a contract, living together is not possible. Each consociation is autonomous and decides for itself about matters that concern it without interference from 'higher' consociations. This is similar to the principle of subsidiarity. It means 'higher authorities should not undertake activities that a lower authority can do'.6 From each consociation there is a delegation to a higher consociation to represent the lower layer. That higher layer then does so to the next even higher consociatio. This creates a line of representation and shared sovereignty from bottom to top, keeping the bond with the base/the people intact. 3 Aristotle, Politica III 11, 1281a40-b3 Althusius says a third thing, and in his view the most important, namely that the binding force within communities comes from a common belief in God. The two tablets containing the Ten Commandments are the most important precepts. 5 The full title is: 'Politica Methodice Digesta Atque Exemplis Sacris Et Profanis Illustrata'. 6 The difference, however, is that in the EU the idea of subsidiarity is not implemented from the bottom up. 4 159 In the eyes of Althusius, the quality of social life is determined by the quality of political organisation. In the eyes of Althusius, all social life is 'political' (including culture and economics). The way we organise government affects the well-being of everyone. Neighborhoods and districts have a hybrid character, in which citizens take their own responsibility to organise livability, but here we are already touching on the public domain, in which government will also play a role. Going up another level, we arrive at the urban level. At this level, the role of government takes over. From this level, Althusius speaks of 'public consociations'. Each town had a town lord elected by the representatives of the lower societies. They granted him power to govern, but of course not absolute power. Sovereignty remained with the people. However, governing was framed by a Herrschatsvertrag, a cohabitation agreement. The representatives themselves are not elected, but appointed by cooptation. This is possible because the representatives represent the community as a whole and not individual voters. In other words, the line from the people to the layers above them remains intact. Althusius also sees other forms of consociatio, for example associations of a socio-cultural nature, but also professional associations (guilds). Citizens unite in order to achieve something, to develop activities or to promote their interests. This is in the private sphere. There is one exception: a political association. Citizens unite around identical political views and act in the public domain to realise their ideals. Political parties therefore have one foot in the private domain and the other in the public domain, which gives them a special position and with that a special responsibility. They bind people with similar political views, ensure the education of (active) members, draw up election programmes and ensure the selection of candidates for political and managerial positions. All in all, this influence is great. Some people think that the influence is too great compared to the influence of the voter. I would now like to take a closer look at the private and public domains, and to do so I turn to Jürgen Habermas. Lifeworld and system In his masterpiece 'Theorie des kommunikativen Handelns', Habermas makes a distinction between the ‘Lifeworld’ and the ‘System’.7 The ‘Lifeworld’ is the world in which citizens meet each other by means of communicative action in order to reach a shared understanding of social issues. The System is about strategic action aimed at achieving a certain result. In earlier times - before the industrial revolution - this distinction did not exist. In the course of time, a separate system has emerged that is independent of the social world. This system has divided itself into two subsystems: the economy and the state. Within these subsystems, actions are controlled by 'money' and 'power' respectively. This development has given society's progress an enormous boost, which is positive. 7 Jürgen Habermas, Theorie des kommunikatieven Handelns, Band 2 Zur Kritik der funktionalistischen Vernunft, Surkamp Verlag, Frankfurt am Main: 1981. 160 Habermas is concerned that the operators 'money' and 'power' have also begun to play a role in the living world, thereby supplanting communicative action in favour of strategic action. Habermas calls this the colonization of the Lifeworld. A characteristic of communicative action is that citizens can deliberate with each other within a power-free space, where claims to the validity of truth, accuracy and veracity take place. 8 Citizens try to achieve shared understanding (Verständigung) through dialogue. The dual position of political parties Political parties are originally associations whose members hold similar political views. Within these associations, discussions take place about the most desirable organisation of society. But it does not stop at discussions; it also involves actual influence. Unlike lobby organisations, political parties take a step towards a political position within the government, more specifically on the political stage. This makes political parties part of the system. What does this mean for the original position of political parties in the Lifeworld? Is colonization taking place here too? I will take the Dutch situation as an example because I know it best. Less than 2.5% of the electorate is a member of a political party. For the Netherlands, that means approximately 300,000 people. Regular studies show that those 300,000 people together distribute about 80% of the most important functions: in politics, administration, advisory bodies, science and business. I regularly ask citizens with whom I have conversations about political issues why they do not become members of a political party. The answer is invariably: 'I abhor political games. I want nothing to do with them'. This statement is at odds with the principles of communicative action: "I, as a citizen, should participate in communicative action within the system environment but because I distrust the system environment I do not participate". See here in one sentence how far the living world and the system world have been separated from each other. This makes the concept of 'democracy' a schizophrenic one: a small, very limited group of citizens claim that their presence guarantees democracy, while the vast majority are passive recipients of this claimed democracy. The Austrian economist Joseph Schumpeter defined democracy as 'the institutional arrangement for political decision-making in which individuals acquire decision-making power by competing for the votes of the citizens'.9 Political parties are concerned with gaining power at the systemic level; they only need the living world to gain the votes of citizens. This is a common complaint among voters that politicians only show 'interest' in citizens during election time. In a situation where only the pursuit of power counts and where is no place for dialogue in and with society, it is mainly the narcissists in politics who will thrive. We only have to look at the political leaders of today to confirm this statement. 8 Truth' is about objectively established facts; 'correctness' is about normativity; 'veracity' is about authenticity. Schumpeter, Joseph A., Capitalism, Socialism and Democracy, eBook edition, Start Publishing LLC, October 2012. 9 161 General Will, General Interest and their Interrelationship Another perspective is that of the concepts of 'General Will' and 'General Interest'. The first concept immediately brings to mind Jean-Jacques Rousseau. We know this French thinker as an advocate of the social contract, the ‘Contrat Social’. This contract between the people and those in power is based on popular sovereignty. In his view, that sovereignty is not transferable. He says the following about this: "I therefore maintain that sovereignty, since it is only the exercise of the general will, can never be alienated, and that the sovereign, who is nothing but a collective being, can only be represented by himself. Power can be transferred, but not the will." 10 What do those in political power do with the fact that there is such a thing as a General Will? I do not have the impression that politicians are concerned with this question, but are busy securing their own political will. Yet politicians are supposed to act in the public interest. This is probably understood to mean not acting on the basis of self-interest. Or it is assumed that when a majority decision is taken in parliament, this automatically means that the Public Interest is served. In any case, the most problematic aspect is that there is no connection between the General Will and the General Interest. If I understand Rousseau correctly, then the transfer of power by the people is not without obligation, for otherwise what is the point of regarding the General Will as inalienable as an exponent of popular sovereignty? When I compare the above with the concepts of 'Lifeworld' and 'System', I conclude that the General Will belongs to the Lifeworld and the Public Interest to the System. Rousseau's General Will is thus synonymous with Habermas's shared concept. In the context of federal, bottom-up thinking, the political system should function in such a way that the General Will is the prelude to the General Interest. In other words, society determines the goals to be pursued and politics is responsible for deciding on the necessity and desirability of the (tax) resources to be deployed to realise those goals. Politicians take care of the allocation of resources, which also has consequences for the prioritization of goals. As far as I am concerned, there is a clear dividing line between the domain of society and the domain of politics. Through fair and free democratic elections, society composes the representation of the people, which thus acquires the power to act politically. This power cannot be taken back by society at random moments. Unless society has valid reasons for doing so, for example if that power is systematically - and factually proven - abused.11 The quality of the representation of the people 10 Rousseau, Jean-Jacques, Het maatschappelijk verdrag, of Beginselen der staatsinrichting, Amsterdam/Meppel, 1995, p. 62 11 To quote Thomas Jefferson: “When injustice becomes law, resistance becomes duty.” 162 The quality of the representation of the people determines to a large extent whether the people have faith in politics. Political parties are responsible for this quality, not the voter; after all, the voter can only cast a vote for one of the candidates. Political parties determine who these candidates are: they recruit interested parties and place them on an electoral list. It makes quite a difference whether a political party puts the emphasis on being part of society and focuses on organising shared understanding, or whether it gives priority to acquiring as many votes as possible in order to gain a position of power. In the latter case, it is more interesting if a candidate politician enjoys popularity among the voters than if such a person is suitable for the office of representative. Political parties must reinvent themselves Political parties should realise that they play a crucial role in the functioning of the democratic legal order. That role will be different from the one they have played so far. They must: a. participate in educating citizens to become virtuous political beings, b. organise deliberative dialogues between citizens, c. scouting and screening candidates for political office, paying more attention to competence and suitability in the light of the action perspective from the Lifeworld. Re a. At the moment, not enough attention is being paid to something like citizenship at schools. When time is invested in it, it is marginal and lacks any depth. It is the task of political parties to support schools in this. Re b. Political parties also have a task in organising deliberative meetings of citizens around social issues. Identifying all the ins and outs of the issues, getting to the bottom of the problematic reality, analysing it and determining the goals to be pursued in order to tackle the problems can only be done with the cooperation of citizens who have knowledge, intelligence and feeling for the subject matter. As mentioned before, it is about striving for shared understanding, for reaching agreement, for being right. In this setting, it is emphatically not necessary to be right; that is precisely an aspect that corresponds to systemic thinking, in which the emphasis is on being right through power. Re c. Political parties are institutions; this evokes the feeling of immutability. But ultimately it is people who determine the course of political parties, and so it is people who can decide to completely overturn that course. This is only possible when political parties attract other people: people who show a high degree of social commitment, who want to engage in the public sphere and who want to do this with complete integrity, without having to wonder whether this is consistent with power politics. When political parties start creating this space for newcomers, a break with the trend can be achieved. Then the support for the political system will increase, the pond from which political office holders can be fished will grow in size. Finally, political parties must ensure that political office holders have the quality that can be expected. 163 An often-heard criticism of politicians and administrators is that they do not need any qualifications to hold such responsible office. A departmental head of finance is required to have an academic education, while a minister of finance can do with primary school. It is not unreasonable for society to expect politicians and administrators to be competent (knowledge and experience) and suitable (mentality and morality) to hold their office. When I say competent, I mean knowledge of constitutional and administrative law, with concepts such as democracy, sovereignty, the trias politica and checks and balances. Politicians who stand for election will have to be demonstrably competent. They will have to invest heavily in this: study, study and study again. Political parties will have to organise or purchase training for this purpose. Requirements regarding suitability are somewhat more difficult to test. They concern matters such as integrity, acting with respect and service, and above all acting morally12 and truthfully.13 Perhaps we should fall back on Aristotle's virtue ethics. In his virtue ethics, he describes a number of (core) virtues, of which 'justice' is the most perfect. And justice is in the highest degree perfect virtue, because it is the actual exercise of the perfect virtue; and justice is perfect, because the one who possesses it can practise the virtue not only for himself, but also towards others.14 The other virtues are Wisdom15, Self-control, and Courage. Virtues are ways of acting. A person who is righteous is a person who acts righteously. Politicians who want to be considered for an important position in the public domain as representatives of the people will have to demonstrate convincingly with concrete examples that they have in the past acted wisely, have self-control, have shown courage and above all have acted justly. This will be the core of a job interview. Finally In the introduction, I asked whether it makes any difference to politicians whether they have to function in a federal system or in another (democratic) system. On the face of it, it makes no difference, but choosing a federal system means choosing popular sovereignty and building a political system from the bottom up, and then it creates a moral obligation for political parties to thoroughly reform their functioning. *** 12 I am thinking here of Immanuel Kant's categorical imperative. Als onderdeel van het communicatieve handelen, zoals bedoeld door Jürgen Habermas. 14 Aristotle, Ethica Nicomachea, translated, introduced and annotated by Charles Hupperts and Bartel Poortman, Damon, Budel, 2005, p.165. 15 With regard to the concept of wisdom, he makes the distinction between practical wisdom (phronèsis), which is necessary for ethics, to do what is right, and theoretical wisdom (sophia), to be able to determine what is true. 13 164 ABOUT COMMON INTERESTS Countries create a federal state together because they understand that there are common interests that they can no longer pursue on their own. While retaining their sovereignty, they design a limited and exhaustive list of common interests to be taken care of by the federal body. One of the most obvious common interests is a defence system for the entire federation. Ingo Piepers, former commander of the Dutch Rapid Reaction Force in the Balkan war of the early 1990s, writes about this. He explains this against the background of his studies on how the European system of states changed in the course of five centuries, always after a major systemic crisis, of which the Second World War was the last, but which is succeeded in the present juncture by the merging of a multitude of individual crises all over the world that together (seem to) cause one comprehensive world crisis. Moses Marinho Sanches discusses the system of banking supervision in Europe as one of the common interests in keeping the financial and economic system of The Federated States of Europe healthy. He compares it to the US system and outlines how it should take shape and substance under the aegis of an ECB within a federal Europe. 165 The importance of a common European Defense Ingo Piepers Former Commander of the Dutch part of the United Nations Rapid Reaction Force to end the war in Bosnia (1992-1995), ingopiepers@gmail.com A long-term process of upscaling Over a long period of time, a process of social and political upscaling has taken place in Europe. From about 1500 there has been an acceleration in that process. Around 1500 Europe still consisted of a loose network of political entities with a great diversity and about 83 million inhabitants, in 1939 there was a tightly coupled network of about thirty states with an identical basic structure and a total population of more than 500 million. That process of social and political upscaling consisted of three components: A process of integration, a simultaneous process of expansion (colonialism), and war dynamics. Wars had a regulatory function and were part of a process of state formation that took place. Forming of the state and the European state system The state as we know it today developed into the dominant form of organization through which societies were ultimately best placed to ensure their security and well-being and to ensure their survival in the anarchist European system. The state organizes societies, controls a defined territory, has centralized its power potential, and has a monopoly on the use of force. The state as we know it - and which is also considered the 'standard' by the United Nations is a European invention. The state's monopoly on violence enabled those in power to consolidate their (internal) position and provided efficiency benefits when the use of force against other states - war was unavoidable. While this process of upscaling and state formation took place, simultaneously a European system of states was formed, which was based on the principle of sovereignty and territorial integrity. State formation and the development of the European state-system was a coevolutionary process. The wrong foundation After the Second World War, Europe was temporarily divided and there was a stalemate that temporarily hindered its further development. After the collapse of the Soviet Union in 1991, that stalemate came to an end and the diverse 'partnerships’ that had developed in Western Europe - e.g. the European Economic Community - then formed the basis for the European Union. The European Union however has some built-in limitations related to its basic structure and arrangements. The European Union is a political partnership based on a series of agreements, with which it has attempted to achieve certain economies of scale and to coordinate policies between still sovereign states that make choices based on their own interests. The European Union is also a monstrosity as a democratic political structure. The problem is that these agreements confirm and further anchor the state as a sovereign actor and promote shortsighted national interests, also when it comes to security, an indivisible interest for European states. 166 The process of political and social upscaling continues at a global scale1 During the period 1480 and 1945 the European system produced four accelerating war cycles. Each cycle consisted of a relatively stable period, with only minor disruptions and relatively 'small' wars to correct them and was followed in all four cases by a systemic crisis and a systemic war. That systemic war was then instrumental in the formation and implementation of a new international order, i.e. a new relatively stable period. The four systemic wars were the Thirty Years' War (1618-1648), the French Revolutionary and Napoleonic Wars (1792-1815), the First World War (1914-1918) and the Second World War (1939-1945). Those four war cycles, the war dynamics of the European state system have been constantly fueled by rivalries between European states, exponential population growth, and the natural life cycles of great powers, which 'come' and 'go', and this dynamic consequently disrupts the balance of power. These four accelerating war cycles (1480-1945) were instrumental in a phase transition, that is, in the transition of the system to a fundamentally different structure, and with a fundamentally different dynamic for Europe. The last step in that phase transition was accomplished by the Fourth System War, World War II, which resulted in the destruction of the anarchic European state system and the establishment of a foundation for political unification in Europe, and in the simultaneous scaling up from a European to a global state system. This was laid down in the United Nations Charter that underpins the first global political order. Despite a stalemate in Europe from 1945-1991, there has otherwise been a 'regular' growth process from 1480 towards ever larger political units. It is expected that this growth process now continues at a global scale; the conditions in the system are now not substantially different than they were between 1480-1945. Too convenient The step towards a federal approach when it comes to security and defense has not yet been taken. From the perspective of political and social upscaling, the step towards a federal structure is a logical next step but has not yet been taken. The Cold War, and the security arrangements (NATO) that were put in place at the time, are partly to blame for this. 1 This paragraph refers to the elements of my Dutch-language book 'De Onvermijdelijkheid van een nieuwe Wereldoorlog, (The inevitability of a new world war), Prometheus Publishers Amsterdam 2020. A detailed explanation in English of the methodology that led me to the conclusion that around 2020 (two years earlier or two years later) a new comprehensive world crisis would break out, with war violence, can be read in chapter 2 of FAEF’s Constitutional and Institutional Toolkit for Establishing the Federal United States of Europe: https://www.faef.eu/wp-content/uploads/Constitutional-Toolkit.pdf. 167 From 1945 to 1991, the Cold War was an exceptional period that greatly influenced thinking about security and defense. In fact, the United States took care of the security of Western Europe. European states could feel safe. NATO was the alliance created for that purpose in 1949, to deal with the Soviet threat. Although after the collapse of the Soviet Union in 1991, the US reduced its military presence in Europe, the alliance continued and even expanded. The assumption still seems to be in Europe that there is still no need for a European defense based on a federal approach, also because the United States is still prepared to guarantee the security of Europe by means of NATO. What further complicates the formation of a common defense is that an effective defense a European army - requires a common European security and defense policy (and vice versa.) Those are two inseparable sides of the same coin. A new reality and consciousness are emerging From 1991, the 'normal' war dynamics resumed, but now on a global scale. The war dynamics again seem to follow a cyclical pattern, consequently, a systemic crisis and accompanying war is then only a matter of time. Despite several attempts to do so, a European army never got off the ground, time and again there was a lack of political will, but also the necessity to do so, was the assumption. Due to the political and military fragmentation of its policies and capabilities, Europe lacks the strategic autonomy - the ability to make choices and act on its own terms - that is consistent with its global economic interests. Countries of the European Union spend a lot more on defense than Russia, but cannot convert it into significant power and influence. European division and fragmentation undermine its interests. Because of the Russian attack on Ukraine, 24 February 2022, but also the shock president Trump caused in Europe and for NATO by stating that US support of Europe is not selfevident, the need for a European Defense and security policy now seems to be emerging. The logic of a federal approach to defense and security has become more difficult to disprove. Russia's attack on Ukraine painfully exposes Europe's limitations, including its dependence on the United States. Because the disadvantages of this European dependency for the US may now - and certainly in the long run - outweigh the interests it serves for the US, the US will also encourage the formation of a stronger European Defense. The US position in the Indo-Pacific - this concerns the US its main rival China - is a more important strategic core interest for the US than Europe. Europe can be expected to take care of the defense of its own interests, so the US can then concentrate on security and its interest in Asia, and renewal at home. Advantages of a federal approach to defense and security are obvious 168 The advantages of a common European defense and a common security and defense policy that inextricably form the basis of this are obvious. A unity of purpose and policy is created, and numerous economies of scale are achieved. It gives Europe the ability to protect and defend its interests better and to act on the basis of its own choices. As I mentioned, the political instability in the United States is also important in this regard, and it is not self-evident - it should not be taken for granted - that the US will continue to be prepared to stand by the divided Europe if there is an external threat. Other more operational advantages of a European defense include more striking power because more resources can be concentrated, longer sustainability can be achieved through standardization, there is greater operational flexibility and responsiveness; and greater efficiency, including in the development and acquisition of (new) capabilities. NATO does not stand in the way of a European defense and security policy, on the contrary. Through a common European defense and security policy NATO can be reinforced and improved, and its decision-making simplified. At the same time, Europe's strategic partnership with the US remains guaranteed. Moreover, if that step is taken towards a federal approach, it will contribute to the development of a European identity, and difficult discussions between European states regarding military commitments will be avoided. Assuming that the process of upscaling continues, with its own logic, and the obvious benefits that can be achieved, a federal approach to European defense and security is a matter of time. *** 169 Does federalizing Europe strengthen economic stability? 1 Mozes Wilhelm Marinho Sanches Junior Supervisor Specialist Governance Banks, mozestricolor@gmail.com Introduction Under the heading 'Towards a future-proof and stable EMU', section 1.5 (p. 48) of the Annual Report 2012 of the Netherlands Central Bank (De Nederlandsche Bank) begins with the following text: "A comparison with the US shows that a properly designed European banking union can break the negative interaction between banks and governments and improve the effectiveness of monetary policy. " It is a response to institutional flaws of the Economic Monetary Union that - unlike the case in the United States - prolonged the banking/credit/economic crisis of 2008 in Europe long and painfully. In essence, the Netherlands Central Bank notes that - thanks to the federal system - the United States was able to recover from that crisis faster than other countries. After outlining four institutional flaws, the Netherlands Central Bank continues with: "During the credit crisis, the US institutional set-up was successful in limiting the negative interaction between banks and individual US states. In contrast, in a number of euro countries the negative interaction has been much stronger. The consequences for financial stability were therefore correspondingly greater. This raises the question of whether the US set-up might offer interesting lessons for EMU." Such an observation demands renewed attention as the urgency for establishing a federal Europe increases. Political leaders within the European Union are speaking loud and clear about the need to form a European federation. If this takes place, it will have consequences for the financial system of the European Union. This brief study is devoted to comparing one aspect of the EU's banking supervision system with that of the US. The importance of economic stability The degree of economic stability of a state system is determined by the degree of vulnerability of that system. Vulnerability in the sense of being able to cope with financial crises and thus being able to withstand the possible collapse of the system itself. The pursuit of economic stability in Europe has been high on the political agenda since WWI. It was and still is the anchor point of political cooperation in Europe. The necessary brevity of this study does not allow for any elaboration on this. For a detailed description of how a monetary European order emerged after the First World War until 1950, I refer to the book in the footnote.2 On 9 May 1950 - the so-called Schuman 1 This study was written in a personal capacity. The history of the growth of a European monetary order is described in detail by Jorrit Steehouder in 'Constructing Europe. Blueprints for a New Monetary Order 1919-1950'. Ridderprint BV 2022. He describes the 2 170 Declaration, which advocated economic stability through the federalization of Europe by means of treaties - intergovernmental cooperation in the economic field began with the establishment of the European Coal and Steel Community (ECSC 1951). This led to the European Economic Community (EEC 1957), which via a European Monetary Union (EMU 1991) passed into today's European Union that with the Treaty of Lisbon (2009) guards the current economic and monetary order of twenty-seven Member States. The EMU established a common financial market, a policy that stimulated Member States to increasingly coordinate their economic policies, the establishment of the European Central Bank (ECB) in 1998 and the introduction of the Euro currency. There are vulnerabilities in their operation. These are briefly described below, followed by a comparison with the US system. The Single Supervisory Mechanism (SSM) The European Union rests on three3 pillars: o First pillar: economic, social and environmental policy, asylum and migration. o Second pillar: the common foreign and security policy. o Third pillar: police and judicial cooperation in criminal matters. Economic policy in the first pillar is one of the most important drivers of prosperity in the European Union. An essential component of this economic policy is the Single Supervisory Mechanism (SSM). This is the system of supervision of banks in Europe. It consists of the European Central Bank (ECB) and the National Competent Authorities (NCA) of the participating countries.4 The main objectives of European banking supervision are: o Ensuring the safety and soundness of the European banking system. o Enhancing financial integration and stability. o Ensuring consistent supervision.5 European banking supervision is one of the two pillars of the EU banking union, alongside the Single Resolution Mechanism. The essence of this study The Single Supervisory Mechanism was created after the banking crisis of 2007 to 2008. I am going to compare the SSM with the supervisory mechanism of the United States. In other words, a comparison between the supervisory mechanism from the perspective of the European Union under treaty law and the supervisory mechanism from the perspective of a federal state, based on a federal constitution. First, I will explain how the European supervisory mechanism works. Then I will mention current problems of SSM supervision and possible lessons to be learned from a federal supervisory mechanism. legal and organisational process of growing economic cooperation and thus the creation of ever more economic stability in Europe in the period 1919 to 1950. 3 See Pijlerstructuur van de Europese Unie - Europa Nu (europa-nu.nl). 4 See Gemeenschappelijk Toezichtsmechanisme (europa.eu). 5 See https://www.bankingsupervision.europa.eu/about/thessm/html/index.nl.html. 171 The SSM supervision in a nutshell Not only the European Union rests on three pillars. The banking union is no different. It consists of the Single Supervisory Mechanism (SSM), the Single Resolution Mechanism (SRM) and the European Deposit Insurance Scheme (EDIS). Due to the limited scope of this study, only the first and the third pillar are explained in detail. For comparative purposes, they are also the most important pillars. The ECB has been the banking supervisor in the Eurozone since 4 November 2014. This task was assigned to the ECB in the SSM Regulation. This was in turn based on Article 127(6) TFEU.6 The current supervisory mechanism distinguishes between significant and non-significant institutions. Significant institutions are subject to direct supervision by the ECB. Nonsignificant institutions are supervised directly by the national competent authorities and thus indirectly by the ECB. In practice, therefore, there is close cooperation between the European Central Bank and the National Competent Authorities (NCA). The latter are in charge of the operational tasks of supervision. The third pillar of the banking union is the European Deposit Insurance Scheme (EDIS). However, this is still part of a dispute between the Member States. The difficulty with this third pillar is that it seeks to provide comprehensive European insurance for all national deposit-guarantee schemes in the Eurozone. The aim is to avoid 'bank runs' in the event of a banking crisis, which might cause the national deposit guarantee scheme in a Member State to fall short. A European deposit insurance scheme can prevent this. It will also prevent savers from holding their funds across borders in other Member States where the banking sector may be in a more prosperous state and where a national deposit guarantee scheme will not be called in at the bottom of the barrel. Nor will banks have the inclination to move to another Member State. Introducing EDIS prevents this: it aims at risk sharing between the Eurozone Member States.7 Problems in SSM supervision, criticism of the SSM In his book Het Europese Bankentoezicht (the European Banking Supervision, the functioning of the SSM'), Ter Kuile lists a number of causes for the fragmentation of the current supervisory mechanism.8 The idea of a banking union is that we have the same material standards for the banking sector throughout the European Union. But this is currently more of a political aspiration than reality, he says. There is still room for national variations in substantive banking law. Even if this is allowed by Union law, it does not make the banking union very Single. The ECB has recognised and often mentioned the problem of fragmentation. Even though harmonization is not seen as a goal within the banking union, it would lead to several benefits: it would create a level playing field for all banks in the euro area, banks would be Gijsbert ter Kuile, ‘Het Europese Bankentoezicht, de werking van het SSM’ (European Banking Supervision, the functioning of the SSM'), Paris 2020, pagina 19. 7 Gijsbert ter Kuile, ibid pagina 25. 8 Gijsbert ter Kuile, ibid pagina 116. 6 172 more comparable, supervision would work with less complex rules and the costs of supervision would decrease. Furthermore, the absence of detailed rules at European level is an important element of discussion in the current supervisory mechanism. The current system consists mostly of open standards that are laid down in the SSM Regulation and further detailed by national laws. Due to the different legal systems in the European Union, these open standards are filled in by national laws in different ways. An example is the governance structure of a financial institution. The Netherlands uses a two-tier board system9. A one-tier board system10 is not permitted for financial institutions. Other European countries, on the other hand, have a one-tier board system. This creates a situation where different countries in the European Union have a deferent approach for the same problem. But how is it in the US? As in the EU, in the US there is a centralized body at federal level that coordinates all supervision of the banking sector. The main differences lie in the homogeneity of laws and the implementation of controls. Unlike at EU level, there is no fragmentation of laws and the rules are set at federal level, which leads to a more consistent approach. Also, supervisors at the federal level not only have a coordinating role but are also part of the investigation team. As a result, problems and differences can be picked up and resolved at the federal level. Criticism of the absence of European Deposit Insurance Scheme (EDIS) The third pillar of the banking union was proposed by the European Commission in November 2015. It did not get any further than a proposal because of differences of opinion between several countries on the interpretation of certain aspects. Some countries are of the opinion that risk reduction has to take place first before risk sharing can be implemented. Others believe that, by pooling the risks, it will create risk-aware institutions. Because of these differences of opinion, the EU system still does not have EDIS. How is this regulated in the USA? In its 2012 annual report, the Dutch Central Bank mentions the advantages of having a federal-level approach: "First of all, individual US states hardly have a role to play in financing any support operations in the banking sector. The states only supervise the smaller local banks, which, in the event of problems, can in principle be settled (resolution) by the federal agency Federal Deposit Insurance Cooperation in an orderly and inexpensive manner within a short period of time. This has also happened frequently in recent years. This federal agency also administers the Federal Deposit Insurance Scheme (DGS), which in the event of bankruptcy has priority over regular creditors by law and is financed by the sector. As a result, the losses from these failures have been limited for the government and have fallen mainly on shareholders, creditors and the banking system. The larger, more systemically important banks fall under the federal supervision of the Federal Reserve and can, if necessary, be supported with 9 With a two-tier board (dual board model), there is a separation between management and supervisors. The management board is in charge of the day-to-day management of the company. A separate supervisory board supervises the management. 10 A one-tier board is a monistic management model. This means that the supervisors are part of the board. 173 federal funds to prevent disruption of financial stability. Such support also has a preferential status and must be repaid by the sector. The financial problems of some US states have not been a threat to the banking system because of this division of roles. The same applies to the high concentration of the banking sector in certain states. These states have not had to support their own banking system; that is done by the federal government. Centralizing funding is more efficient than each state building up its own buffers to resolve its banks. Moreover, the risks are more bearable by the central government because the banks are significantly smaller in relation to the GDP of the currency union as a whole." 11 With a European Deposit Insurance Scheme (EDIS), the national guarantee schemes are less burdened and the Significant Institutions (which are now anyway under the direct supervision of the ECB) can call on a common budget in case of financial problems. In the absence of a European Deposit Insurance Scheme (EDIS), financial crises may recur and place a heavy burden on national finances. Conclusion Although both systems have several similarities, it is clear that without an approach at the federal level, the main objective of the banking union cannot be achieved: economic stability through harmonization. Economic stability is one of the Common European Interests that cannot be adequately served by nation states themselves. It is an interest that must be looked after for the whole of the European Union. Overcoming the absence of an EDIS at the European level and the fragmentation of supervision are therefore important reasons for a Federal Europe. The title of this study is: 'Does federalising Europe strengthen economic stability?' The answer is 'yes', provided that the system of treaties is exchanged for a constitution. Continuing with the political choice of working with adapted treaties will not solve the current institutional flaws. This is the main lesson to be learnt from the choice, made since 1950, to try to achieve economic stability on the basis of a system that is not instrumental to that end. Its institutional flaws make the system unable to withstand possible new financial crises arising within the banking institutions. Only a legal choice, a concrete federal constitution, can guarantee the professional care of this Common European Interest: economic stability. *** 11 Annual Report of the Netherlands Central Bank, page 49. 174 ABOUT EMERGING FEDERATIONS This section focuses on the unmistakable trend since World War II for states to understand that the care of common requires a federal state form. Today, over 42% of the world's population lives in twenty-seven federal states. More federal states will follow. The historical process of the evolution of state systems shows that (the conflict- and warprone) nation states slowly but surely transform into (peace- and prosperity-prone) federal state systems. Provided they have been built properly. Javier Giner describes how the process of two centuries of evolution of the Spanish state system must lead to a fundamental decision to transform the decentralized unitary state of Spain into a federal state. Following in the footsteps of Switzerland, Germany, Austria and Belgium. A Spanish federated state as a member state of the Federated States of Europe. As such, it can serve as an example for the United Kingdom which, like Spain, is highly decentralized (devolution) and only needs to take a small step to make it a federal state of four member states: England, Scotland, Wales and Northern Ireland. In order to build a strong federal Spain and UK, however, one has to opt for a centripetal approach. If one chooses a centrifugal approach, one has to fear for a weak federation, because a centrifugal approach leads generally to too many top-down elements in the constitution. 175 Towards a federal Spain in a federal Europe? Javier Giner President Union Europea de Mallorca, Executive Member Federal Alliance of European Federalists, javier@faef.eu Introduction Spain is a constitutional monarchy in a decentralized unitary state. With its autonomous regions, it is even the most decentralized country in the European Union. That is why it looks like a federal state. But appearances can be deceptive. Spain is a unitary state, despite its farreaching decentralization. And that means that the centre of power is in Madrid. Power over the regions as well. This is not the case in a federal state. The centre of a federation is only concerned with looking after common interests. It does not enter into the internal order of the parts of the federation. Whether Spain would be wise to convert the unitary state into a federal state (as has been done in Europe by Switzerland, Germany, Belgium and Austria), and under what conditions this could be successful, I will discuss later in this paper. First, I will very briefly describe the historical diversity of important changes in the Spanish state system. Thoughts on the possible federalisation of Spain - in the evolution1 of successive structures of the Spanish state - can be better understood if one knows what has happened in this respect in the last centuries. The diversity of political developments in two centuries2 The Napoleonic invasion of Spain in 1808 during the authorized entry of the French armies into Spanish territory on the occasion of the invasion of Portugal that had been arranged between the French and the Spanish was one of the bloodiest episodes in the history of Spain and it marked a change in the monarchy of Spain when King Carlos IV of Bourbon abdicated, in favor of his son Fernando VII. It is known as the Abdications of Bayonne, through which Napoleon obtained the rights to the crown of Spain. The emperor ceded his rights to his brother José Bonaparte, who would take over as king of Spain under the title of José I. Napoleon signed the Treaty of Valençay in 1813, which is named after the castle where Fernando VII was held during the War. The 1812 Constitution recognized Fernando’s VII authority as monarch, just as he recognised the Constitution by swearing allegiance to it. However, it was not his real intention. In fact he did not recognize either the Constitution, nor the reforms that had been made during the war. It is this fact that marks the end of the War of Independence and the inauguration of a new historical period, where the absolutist system was taking its last steps and in which the Old Regime as such would completely end with the beginning of the reign of Elizabeth II in 1833. See Robert Agranoff, ‘Federal Evolution on Spain’ in: International Political Science Review (1996), Vol. 17, No. 4, 385-401. 2 See https://es.wikipedia.org/wiki/Historia_contempor%C3%A1nea_de_Espa%C3%B1a. 1 176 Elizabeth II inherited the crown at the age of three years old, under the regency of her mother María Cristina. The Carlists, however, refused to accept the succession and started a civil war in which the two sides operated on ideological and social issues. On one side, the supporters of the Old Regime, who broadly speaking were the majority of the clergy, and a good part of the lower nobility and the peasants of the northern half of Spain. On the other, supporters of the New Regime, broadly speaking the middle classes and the urban populace (headed by the most politically aware: some 13,000 exiles who were allowed to return by a new amnesty. The queen regent wanted to restore the validity of the Constitution of 1812. The following year the situation was redirected with a more conservative text: the Spanish Constitution of 1837, though based on the revolutionary principle of national sovereignty. When the Carlists did not get international support and resources, General Maroto agreed to negotiate peace with Espartero (the embrace of Vergara , 31 August 1839), giving the Carlist officers the possibility of joining the national army. Most of the Carlist nobility began to accept, with greater or lesser pleasure, the new situation. It marks another defining circumstance of the New Regime: political centralism was mitigated for the Basque and Navarre Provinces. A wave of revolutionary changes followed. The Revolution of 1848 ended the Europe of the Restoration. O'Donnell created the Liberal Union, an eclectic party that sought to integrate moderates and progressives. The new Constituent Cortes drafted a constitutional text that was never approved or entered into force. The Spanish Constitution of 1856, also known as the ‘non nata’ because it was never promulgated due to the ‘counter-revolutionary coup’ of General Leopoldo O'Donnell, which put an end to the progressive biennium of the reign of Elizabeth II of Spain and decreed the closure of the Constituent Courts elected in 1854. The ‘non nata’ came to include the ideas of the progressive liberal ideology and anticipated some of the ideas later developed by the 1869 Constitution of the Democratic Sexenio. On 19 September 1868, Generals Prim and Serrano and Admiral Topete took up arms in Cádiz. An army led by Serrano headed from the south to Madrid, defeating at the battle of Alcolea (September 28) the one sent by the government to intercept him. The Queen, who was spending the summer in San Sebastián, crossed the French border and from exile would maintain her claim to the throne, without abdicating for her son Alfonso, until two years later. Municipal elections were called in December 1868, with universal male suffrage, where the Republicans obtained important parcels of power in twenty provincial capitals, including Barcelona, Valencia and La Coruña. The 1869 Constitution, the first democratic in the history of Spain, proclaimed national sovereignty and established a parliamentary monarchy with a strict division of powers, in which the government was responsible to the bicameral Cortes and an independent judiciary. A territorial decentralization in provinces and municipalities was outlined, and the possibility 177 of reforming the status of colonial territories was pointed out. The political issue that absorbed the main interest, and that reached a great international repercussion, was the search for a suitable candidate to occupy the throne. Discarded was, for obvious ideological reasons, the Carlist claimant Carlos VII, who was weighing his options of reaching the throne by peaceful means or by an armed uprising. On 11 February 1873, Congress proclaimed the Republic by 256 votes in favour and 32 against. On 3 January 1874, General Manuel Pavia violently interrupted a session of the Cortes, which had just withdrawn confidence in Castelar despite the fact that the action did not have the spectacular nature with which it was popularly described. The expression the horse of Pavia became a Spanish political topic similar to that of saber rattling, with which the threat of a military coup d'état is alluded. The power vacuum led to the formation of a centralist government that put the Presidency of the Republic in the hands of Serrano, who in practice did not submit to constitutional controls, considering his mandate (almost a whole year) as a true dictatorship. The Spanish Constitution of 1876 was promulgated on 30 June by Antonio Cánovas del Castillo and was the basis of the Bourbon Restoration. The drafting of the Constitution was entrusted to a Commission of notables chosen by Cánovas himself. It was presented to the Cortes and approved without major changes on June 30. It was decided not to specify the electoral system (with which the following elections would be held by census suffrage until 1890. Sovereignty was shared between the King and the Cortes, in a bicameral parliamentary system that left the executive power to exercise a very broad power. The recognition of public freedoms was nuanced. The catholic denomination of the state and the tolerance towards other religions were defined. The labour movement was reorganized with the creation of parties and unions of Marxist ideology (PSOE3 1879 and UGT4 1888), under the leadership of Pablo Iglesias, who opted for electoral participation, with greater implantation in Madrid and the Basque Country. He adhered to the movement of anarchists who opted for non-intervention in the political system, with greater implantation in Catalonia and Andalusia. A confused network of anarchist groups and individuals developed practices of ‘direct action‘. We now enter the 20th century. Reinado de Alfonso XIII (1902-1931) After the disaster of 1898, the only way out for Spanish imperialism was the Africanist vocation. An intense diplomatic activity led to obtaining a colonial presence in the protectorate of Morocco, which was obtained precisely because it was opportune for the European powers to grant to Spain, a power of little consideration. Dictatorship of Primo de Rivera (1923–1930) A dictatorship was then imposed which, in the early years, received all kinds of social support, from the Catalan bourgeoisie to Largo Caballero's UGT while the dynastic parties accepted the suspension of the Constitution. 3 4 Partido Socialista Obrero Español. Unión General de Trabajadores. 178 Dictablanda and final crisis of the monarchy (1930–1931) The Republican parties and the PSOE constituted an electoral bloc that received the support from the UGT. In Catalonia, the dynastic parties allied themselves with this League and created the Esquerra Republicana de Catalunya. The CNT5 applied anarchist ideological orthodoxy, which considered it counterproductive to intervene in bourgeois political institutions; while the Communist Party of Spain (PCE6), split from the PSOE as a result of the formation of the Third International pro-Soviet and was still a very small party. Second Republic (1931–1939) The 1931 Constitution recognized a broad set of political and social rights, such as women's suffrage, the institution of mixed juries of employers and workers in parity for the resolution of labour disputes. The republican left and the labour movement feared that the incorporation into the government of Gil-Robles would mean, as had happened with that of Hitler in Germany, the establishment of a fascist system despite its democratic origin. The insurrection of October 1934, promoted by the PSOE, supported by the anarchists, and which in Catalonia had the institutional adherence of the autonomous government, of Esquerra Republicana (which went even further, proclaiming the Catalan State within the Spanish Federal Republic, October 6), failed in all of Spain except in Asturias, where the miners took over the cities. The government commissioned the repression to the army of Africa, led by Francisco Franco, who put an end to the revolt. In addition to the numerous deaths and injuries, thousands of workers, trade unionists and politicians from left-wing parties were imprisoned. The Popular Front (February to July 1936) With the same denomination of Popular Front an electoral coalition was formed that won the elections of February 1936. The Catalan Generalitat was restored, and the reforms paralyzed by the Radical-Cedista biennium were unblocked, among them the procedures to provide autonomy statutes to Galicia and the Basque Country. Labour confrontations and public disorder were on the rise. A new wave of anticlerical riots broke out again. Civil War In the afternoon of 17 July 1936 began the military uprising in Morocco, followed in the morning of July 18 in most of peninsular Spain. The so-called National Uprising failed in key places, such as Madrid and Barcelona, due in some cases to opposition from the army, and in others to popular resistance, organized in union militias and left-wing parties that obtained weapons from government authorities. The rebel side remained from 1 October 1936 under the sole command of General Franco, whose prestige had been increased by the harsh campaign that connected the rebel areas of the south and north, prolonged with the episode of the rescue of the besieged in the Alcázar of Toledo (27 September 1936). Autarky and National Catholicism (1939–1959) After the ‘Victory’, an extraordinarily harsh repression extended over time (the State of war was not lifted until 1948) and focused on social groups identified as Anti -Spain: unions and peripheral republican, leftist and nationalist parties; whose assets were confiscated. 5 6 Conféderatión Nacional del Trabajo. Partido Comunista de Espańa. 179 Developmentalism and openness (1959–1975) From the establishment of the alliance with the United States, the regime consented to a relative political opening, consisting of the muffling of the Falange's fascist rhetoric or the promulgation of laws (such as the Press and Printing Law of 1966). The internal opposition between the families of the Franco regime manifested itself in scandals such as the Matesa case (1969), resolved expeditiously by Franco by dismissing both the ministers involved (of Opus) and his opponents (including Fraga himself, who was accused of use the press to denounce the case). Franco's successor was appointed king, and in compliance with the Fundamental Laws of the Kingdom (July 1969) Juan Carlos de Borbón y Borbón, grandson of Alfonso XIII and son of the pretender Juan de Borbón. The latter, despite being at odds with Franco since the 1940s and remaining in exile in Portugal, had allowed his son to be educated in Spain under the control of the authorities. In 1968, a ‘terrorist problem’ arose with Euskadi Ta Askatasuna (Euskadi Y Libertad, ETA), a group previously founded as a radical split from Basque nationalism, and which it tried to dismantle by combining severity and clemency with the remission of the death sentences of the Burgos Process. Finally, in the last months of the year 1975, Franco's illness entered its final course, at a critical moment in the Western Sahara conflict: the Green March, which Juan Carlos had to negotiate authorizing the negotiation of the abandonment of the African province for the benefit of Morocco and Mauritania (Madrid Agreements of 14 November 1975). Government of Carlos Arias Navarro (1975–1976) During the government of Carlos Arias Navarro also the Reign of Juan Carlos I (1975-2014) and the Democratic transition (1975–1982) took place. Carlos Arias Navarro, who had been the last president of the Franco government, was confirmed in that position by Juan Carlos I. Governments of Adolfo Suárez (1976-1981) To the surprise of Francoists and opponents, who did not expect such an appointment, a rapid dismantling of the Francoist institutional building began, which involved the socalled harakiri of the Cortes and the calling of a referendum for the approval of the ‘Law for Political Reform’. The problem of terrorism was intensifying; from the opposition to the Franco regime (ETA, with a Marxist-Leninist and Basque nationalist ideology, and the GRAPO7, with a Maoist ideology) versus the extreme right. Constituent Legislature of Spain The 1977 general elections were then called, the first free elections in forty-two years, which were won by the Unión de Centro Democrático, an improvised party around the figure of Suárez, which had a comfortable majority. Contrary to widespread predictions, the main opposition party was not the PCE, but the PSOE, a social democratic party supported by the Socialist International (and which later renounced Marxism). The extreme right did not obtain representation, reducing the field of Francoism to the modest result of the Popular 7 Grupos de Resistencia Antifascista Primero de Octubre. 180 Alliance of Manuel Fraga. Coup of 23-F and government of Leopoldo Calvo-Sotelo (1981-1982) The resignation of Adolfo Suárez, who had lost the confidence of most of the leaders of his own party, precipitated the preliminary preparations for a coup, and during the investiture session of his replacement, Leopoldo Calvo-Sotelo (23 February 1981), a detachment of civil guards led by Antonio Tejero occupied Congress and kidnapped the deputies and the entire government. But this ‘Coup 23-F’ (named after the date in February) failed eventually. Governments of Felipe González (1982-1996) The new government had to deal with an economic crisis, while at the same time implementing measures, typical of a welfare state with a social democratic orientation, increasing public spending on social policies. In 1989 Spain joined the European Economic Community, leading to the European Union. The problem of ETA terrorism continued to exist, an organization that perpetrated two massacres in 1987: in a shopping center in Barcelona and in the Casa Cuartel in Zaragoza. Due to this, the socialist government tried all kinds of solutions: internal political pressure based on consensus between the democratic parties. The year 1992 constituted a conjunction of events of such magnitude, that it will take a long time to be repeated in Spain: Olympic Games in Barcelona and the World Exhibition in Seville, which also involved the construction of important road infrastructures such as the first railway line in high-speed train (AVE) that linked Madrid with Seville. After that remarkable year, a period of crisis began that would last until 1997. The economic crisis (at the end of 1993 the unemployment rate reached 24% and in less than a year three successive devaluations of the peseta) was joined by the excessive extraordinary expenses earmarked by the Public Administration for the ‘costos del 92’. Now I skip the Governments of José María Aznar (1996-2004), the Governments of José Luis Rodríguez Zapatero (2004-2011) and the first government of Mariano Rajoy (2011–2015). Reign of Felipe VI (since 2014) On 2 June 2014 king Juan Carlos I announced his abdication after almost thirty-nine years of reign. On 9 November 2014, the Catalan regional authorities held a pro-independence referendum that was not accepted by the State, with a disparate interpretation in terms of its significance and result, taking into account (a) that there was no official census, (b) participation was calculated at 37% of the potential voters, including resident foreigners and young people over 16 years of age, (c) of the votes counted, 80% answered ‘yes-yes’ to the questions posed, about a possible State and its independence, and (d) which had legal consequences. On September 27, 2015, regional elections were held in Catalonia that the autonomous government, declared pro-independence, proposed as ‘plebiscitary’, in the sense that the vote for the unitary candidacy called Junts pel Sí (‘together for yes’) should be considered a vote for independence. So much for this short treatise on the great diversity of successive governments over two centuries. A diversity that swings from the far right to the far left, with occasional politics 181 that held the middle ground. I will leave the recent governments (Mariano Rajoy, 2015–2018 and Pedro Sánchez, since 2018) aside and focus on the autonomy and cultural differences of regions. Let me conclude this section of the paper by quoting professor Xabier Arzoz, who summarizes my foregoing historical enumeration in this way:8 “Spain may be defined as a “multinational quasi federal unitary state. This characterization might appear contradictory, but it attempts to underline the unique Spanish model as it takes elements and characteristics from different state models in a rather convoluted way. The Spanish Constitution of 1978 attempted to combine the traditional ideology of the nation-state with a limited recognition of territorial and cultural autonomy. Certainly two fundamental provisions recognized collective identities: the right to autonomy of nationalities and regions (Art. 2) and the right to use the various regional languages (Art. 3). Nevertheless, at the same time, Art 2 stipulates that “the Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards”. Moreover, Spain has accorded territorial autonomy not only to the nationalities, but also to all ‘ordinary’ regions as well, giving rise to the establishment of 17 so-called ‘autonomous communities’ and two ‘autonomous cities’, Ceuta and Melilla.” The diversity of autonomy and cultural identity of the regions Spain has 17 autonomous regions. Not only does the cultural identity differ from region to region, the degree of autonomy also differs from region to region. The 17 autonomous regions are: Galicia, Asturias, Cantabria, Pais Vasco, Aragon, Cataluña, Islas Baleares, Valencia, Murcia, Andalucia, Extremadura, Castilla-La Mancha, Castilla-Leon, La Rioja, Navarra, Islas Canarias y Madrid. And 2 autonomous cities: Ceuta and Melilla. In order to keep this paper concise, I give the readers the sources to assess for themselves the specific autonomy and culture per region. See the list below. After that I focus on some specific autonomy differences of some specific regions. Catalunya Basque Country Galicia Aragon Valencia Andalucia Extremadura Castilla y Leon Castilla-La mancha Murcia Asturias Cantabria Navarra https://en.wikipedia.org/wiki/Catalonia#Historia https://en.wikipedia.org/wiki/Southern_Basque_Country https://en.wikipedia.org/wiki/Galicia https://en.wikipedia.org/wiki/Aragon https://en.wikipedia.org/wiki/Valencia https://en.wikipedia.org/wiki/Andalusia https://en.wikipedia.org/wiki/Extremadura https://en.wikipedia.org/wiki/Castile_and_Le%C3%B3n https://en.wikipedia.org/wiki/Castilla%E2%80%93La_Mancha https://en.wikipedia.org/wiki/Murcia https://en.wikipedia.org/wiki/Asturias https://en.wikipedia.org/wiki/Cantabria https://en.wikipedia.org/wiki/Navarre See Xabier Arzos, ‘New developments in Spanish federalism’ in: https://www.cairn.info/revue-l-europe-enformation.htm. 8 182 La Rioja Madrid Illes Balears Islas Canarias 2 autonomous cities Ceuta Melilla https://en.wikipedia.org/wiki/La_Rioja https://en.wikipedia.org/wiki/Madrid https://en.wikipedia.org/wiki/Balearic_Islands https://en.wikipedia.org/wiki/Canary_Islands https://en.wikipedia.org/wiki/Ceuta https://en.wikipedia.org/wiki/Melilla Some special autonomous differences between some regions Catalonia, the Basque Country and Galicia have more powers than the others. The Basque Country is the oldest region in separatist and independent claims that come from the eighteenth century as a result of the Carlist wars that in exchange for ceasing their hostilities received favorable treatment with formal agreements and later with the Basque Agreement, which allows collect taxes directly in its territory. This characteristic does not exist in any other region of the State, not even in Catalonia. In addition, the Basque Country has since the Franco Dictatorship led the armed struggle with more or less intensity in order to demand the separation of the Basque Country from the rest of Spain. Currently the different Basque governments have a good relationship with the central government. In Catalonia, autonomy has been characterized by an independence tendency since the last century, but its characteristic has always been the negotiation on softening political pressure in exchange for great advantages in investments, superior to the rest of the autonomies of the Spanish State. Galicia declared its independence by referendum as early as 1936 with the adoption of the Statute of Autonomy. However, it was never effectuated because of the Civil War from 1936 to 1939. For many years, the status of any 'independence' consisted of special socio-political privileges granted to Galicia by the central governments to maintain some peace. But since 1981 this region has a Statute of Autonomy of Galicia, which, with its specific measures, sets this region apart from others in terms of autonomy. There is little added value in listing the differences in autonomy for each of these three regions. In a nutshell, their autonomy differences, compared to the other fourteen, have two characteristics: (a) the desire and aspiration for independence has existed for many years and (b) the measures to block that independence consist of harsh repressions from the central government, together with the granting of favours to keep the peace; favours that other regions did not receive. Structural conflicts between regions and the central government Since there was never a mutually satisfactory solution - a conflictual situation (central government versus region) remained - these three regions' have maintained their opposition against ’Madrid’ over the years. Catalonia With the triumph of the Republic in 1931, the ideological movements created the ‘Esquerra Republicana de Catalunya’ party to promote independence, but with the outbreak of the civil 183 war and the Franco dictatorship until 1975, the process was paralyzed. In the political transition to democracy, other Catalan nationalist parties emerged that won the elections but did not advocate independence but collaborated with the governments of the Spanish State. This caused the independence parties to radicalize and as of 2010 there has been a division of society in Catalonia with 50% for and against independence. With all this, the situation has been radicalized and has led to political problems with the celebration of an illegal Referendum in 2015 with the consequent interventions of the Government of Madrid annulling the Catalan Autonomy by the application of Art. 155 of the Constitution of the Spanish State from the 27 October 2017 until June 2, 2018. Currently the Government of Catalonia is pro-independence by a slim majority of votes and this leads to confrontations with the central government. There is a negotiating table but there is no significant progress and the problem is latent and there is no solution. Basque Country The Proposal for the Political Statute of the Community of the Basque Country, also called the Proposal of the Basque Parliament for coexistence in the Basque Country when it was presented by the President of the Basque Government Juan José Ibarretxe (for which it is popularly known as the Ibarretxe Plan) was a reform project of the Statute of Autonomy of the Basque Country of 1979. A New Political Statute of the Basque Country was announced by Lehendakari Ibarretxe at the general policy plenary session of the Basque Parliament in September 2001 and presented on 25 October 2003. The plenary session of the Basque Parliament approved it on 30 December 2004 and decided its sending to the Congress of Deputies by a majority of 39 votes against 35, following the channels marked by article 46 of the aforementioned text. In January 2005, the president of the Basque Parliament delivered the Statute proposal to the president of Congress for debate and vote, being rejected on February 1 by 313 votes against of 350 of the Chamber. Galicia Galicia is of the three historical communities the softest in its relations with the Spanish State. Even at the time of Franco's dictatorship in this region the dictator found his place of residence in the famous ‘Pazo de Meirás. The Pazo de Meirás was declared an Asset of Cultural Interest in 2008, despite the opposition of the heirs of the Franco family. Galicia is constituted as an Autonomous Community to access its self-government in accordance with the Spanish Constitution and with this Statute, which is its basic institutional rule. The Autonomous Community, through democratic institutions, assumes as its main task the defense of the identity of Galicia and its interests and the promotion of solidarity among all those who make up the Galician people. The powers of the Autonomous Community of Galicia emanate from the Constitution, this Statute and the people. Galician independence is a current of Galician nationalism that seeks the separation of Galicia from the rest of Spain and the Northern Region from the rest of Portugal, and the establishing of an independent Galician republic. After the 1980s , the radicalism and armed struggle of the Galician independence movement led to continuous persecution and problems with the law. However, there are still minor independence groups, generally communist, such as: Galician Popular Front Other regions Let’s have a short look at some other regions. 184 Navarra: The ‘Organic Law 13/1982’, of August 10, on Reintegration and Improvement of the Formal Regime of Navarra (LORAFNA), is a State Law compatible with the new constitutional framework, which shows the will of the Spanish State to respect Navarra as an institutional entity, differentiated and competently ‘improved’ within the framework of the new rule of law, democratic, social and autonomous community that was established the 1978 Constitution. It is, at the same time, a rule that is part of the legal system of the State, subordinated to the Constitution and other international or state regulations prevalent, and the basic institutional rule of Navarre, that is, the first of all the rules of the legal system of the formal institutions and that said rules they have to respect. All provisions issued by the formal bodies of Navarre must respect the LORAFNA, since the legitimacy and validity of these standards now derive from it. The Organic Law is integrated as the basic rule of the Fueros of Navarre: the new updated and modernized version must be seen in it of the Fueros de Navarra and the inherent pact and mutual respect between the State and Navarran institutions. Andalucía is the autonomous community with the largest number of inhabitants and the second in Spain in territory. The variety of its landscapes, the mildness of its climate and the hospitable nature of its people have made it one of the most attractive regions for visitors. Castilla y Leon is the largest Community in the Spanish State and has historical components of great importance due to its belonging to the ruling dynasties since the reconquest. This warrants an additional quote from Professor Xabier Arzoz: “At the surface, it is the territorial rationale what appears to prevail in the Spanish decentralization model. In contrast, the national character of a territorial autonomy results indirectly from the ethnic self-identification of the overwhelming majority of its inhabitants, as well as from the concrete exercise of autonomy through the various powers and functions of the Autonomous Community in education, language policy, media etc. Most nationalities have also used their powers to define their national symbols (anthem, flag, national festival days, etc.) and to emphasize their cultural specificity. Therefore, Spanish federalism needs to be analysed from a triple perspective—the degree of decentralization it has developed (the dilemma unitary state vs. autonomy), the degree of recognition and accommodation of ethnic and linguistic diversity it involves (the dilemma nation-state vs. multinational state) and the degree of asymmetry constitutionally entrenched and/or de facto implemented (the dilemma symmetrical vs. asymmetrical federalism).” The hidden resistance and open conflicts will never end unless we federate Where countries and regions wish to retain their sovereignty but live and cooperate with each other in peace and prosperity, the form of a federal state is the only appropriate form. The creation of federations is the best instrument for peace, tranquility and prosperity, at least if the parts of the country are not only different from each other and if they have a conflicting relationship with the central government. The title of this paper ‘Towards a federal Spain in a federal Europe?’ is a question. My answer is: yes. The high degree of decentralization cannot hide the fact that it is precisely the large differences between the central government and the regions that are a constant 185 source of conflict. And will remain so. The decentralization of Spain has always been characterized by a central government that very reluctantly decentralized as a favour - to buy peace - not as a natural consequence of the adage 'All sovereignty rests with the people'. How did Switzerland, Germany and Belgium do it? Switzerland chose a federal state in the mid-19th century because the confederation was a source of serious internal wars. Germany needed the Second World War to make the same decision in 1948. Belgium solved the century-and-a-half-long enmity between Wallonia and Flanders by transforming the decentralized unitary state into a federal state with six far-reaching reforms from 1960 onwards. One cannot claim that these three states fared badly afterwards. On the contrary. Where regions within a country have to live together, but like to retain their identity while a centre looks after common interests, the form of a federal state is the only one that fits the bill. The question is, of course, "Why doesn't the Spanish central government learn from those three other countries?" I leave it to others to answer that question. I will limit myself to presenting a brief procedural outline that should lead to a federal Spanish state, part of the future Federated States of Europe, as the Federal Alliance of European Federalists (FAEF) proclaims with its federal constitution. A procedural roadmap towards Spain’s federalization For the roadmap, I will limit myself to two issues: which building structure should be applied and how to implement it. One is the architecture. The other is the implementation of that architecture. Let Spain centripetally federate One can build a federation from the bottom up or from the top down. One chooses a bottom-up approach if there are parts but no centre to look after the common interests of the whole. This is how the first federation came about in America in 1787. Centripetal construction is a very strong form of federalisation because it comes closest to the adage 'All sovereignty rests with the people'.9 The top-down approach is a centrifugal construction process. The centre is already there, and the parts (regions, provinces) are given powers by the central government to make decisions themselves. Decentralization and devolution (see United Kingdom) are examples of a centrifugal construction process, but it is only called a federation when the parts are independent in the sense that they have their own set of instruments: a constitution, parliament, government, judiciary and their own policy areas.10 Where there is no centre, the choice for a centripetal federation is obvious. However, if one wants to federate a unitary state, thus a state that has already a central government, one Spain can learn from the centripetal construction of the US Federation. See Antonio F. Pérez, ‘U.S. Federalism and Spanish Autonomy – lessons from U.S. Federalism for the external activities of substate entities’, The Catholic University of America, Columbus School of Law, 2001. 10 See for more information about the difference between centripetal and centrifugal federations in this Volume the paper ‘Unitary Aspects of Centripetal and Centrifugal Federations’ by Leo Klinkers. 9 186 would be wise not to take the obvious choice of centrifugal building but opt for centripetal. That, of course, is easier said than done. Especially in light of the centuries-long top-down government culture in Spain. That culture always attracts those who take governing from above for granted. And for that reason always get stuck in half-hearted decentralization processes. Where a unitary state feels the urge to transform itself into a federal one, the initiative will always come from above. And thus, always be motivated to lead the transformation process in such a way that unitary aspects don’t get lost. With all the risks that this federation will collapse eventually. In order to avoid a centrifugal approach, I outline below those aspects that fit into a centripetal approach, i.e. from the regions themselves. The roadmap For a centripetal approach, I recommend the following: The President of Spain establishes a constituent body of the 17 regions, with the following mandate: • Draft a federal Constitution for a federal Spanish state; • By a Citizens’ Convention of 85 members, elected by universal suffrage (17 autonomies x 5 citizens); • Debating a draft Constitution for 6 months, to be approved by the Convention by majority vote; • Delivering the Constitution to the President so that the citizens of Spain can ratify it in a referendum; • Taking into account that the autonomous regions that approve the Constitution will form part of the Spanish federal state, while the regions that have rejected it will remain outside the federal state but may join the federation in the future. 187 ABOUT THE ALFA AND OMEGA OF FEDERALISM This last section can be seen as a ‘sandwich’: our Constitution for 'The Federated States of Europe' packed between old and new thinking on the ongoing process of federal state formation. The studies by Frans Vermeulen and Berry Scheperboer deal with esoteric, philosophical and theological worlds of thought that give human connections to the structure and procedures of the Constitution. Glen Martin's study elaborates on this in a consideration of federal thinking and organisation for all mankind. Frans Vermeulen describes how the first traces of thinking in terms of federal state formation can already be found in writings of King Hammurabi, two centuries before our era. In later years, they were slowly but surely recorded in the Torah, a complex of thinking about good and evil, and about the regulation of dealing with them, with unmistakable traces of federal thinking. While Vermeulen departs from antiquity - to be seen as the alpha aspect - Glen Martin describes the future: that of a World Federation, based on a federal Constitution for the Earth: the omega aspect. By conceptualizing ideas of, among others, Immanuel Kant, Albert Einstein and Jürgen Habermas, Martin gives an insight into the way in which a World Federation based on a Constitution for the Earth can and must take shape, both legally and organizationally. These two studies are the parts of the ‘sandwich’ between which Berry Scheperboer's study is placed. Scheperboer deals, at a high level of abstraction, with the attribution of values and virtues to the three main organs of ‘The Federated States of Europe’: the European Congress, the House of Citizens and the House of States. On the one hand, he looks back at the age-old world of thoughts about good and evil, as it also appears in Vermeulen's study, but he also casts a glance ahead to the advent of a world federation that must realise lasting peace and prosperity on the basis of 'doing good'. 188 The Torah in the Construction of a Federal Europe, including Russia Frans M. Vermeulen MA Executive Member Board World Federalist Movement Netherlands, fdvermeulen@home.nl Introduction Federalism is an ancient phenomenon, often unrecognized and therefore not articulated. This should not surprise us. The things in our world are there before their names. Names are labels that are stuck on things, sometimes right, sometimes wrong. Confederalism already existed in ancient times in the form of attempts to divide an overly large empire into more or less independent regions. The universal phenomenon that emerged is called 'subsidiarity', which means that problems must be solved where they arise, while problems that arise in a larger area and cannot be solved locally must be outsourced to a higher level of government. The phenomenon first occurred among peoples who settled permanently in a fertile area1. In such a situation the law soon made its appearance by means of a number of agreements, collected in a codex, while the law among peoples took a long time to develop. Warfare was the normal way of settling disputes. Nevertheless, even in ancient times there must have been people who thought it was better to live together in peace. It was the peacemakers who - long before our era - began to study what would later be called a 'constitution': a number of agreements in which the interests of all were compared and weighed against the interests of individual people. In that grey past, peace was just as vulnerable as it still is, unfortunately! This paper wants to shed some light on that and also describe the interface with the Torah as an example of what such a - in our view primitive - constitution wanted to achieve. In this way we hope to be able to better substantiate the need for a federal Europe, including Russia2, in the process of a coming world federation. The Torah What is the Torah? This concept is not widely known. Those who have heard of it usually associate it with the faith of Judaism. This is not entirely untrue. The Torah is indeed the foundation of the Jewish faith, but it is a system of written and unwritten rules for peaceful coexistence that existed long before there were a Jewish people. The Jewish community has gradually made it its own, but not as an exclusive property. The Torah also belongs to you and me, to everyone who considers it normal that we are jointly responsible for peaceful coexistence. And that for this reason we should make agreements about how we treat each other. The question then is: what kind of agreements and in what structure? 1 The area between the Euphrates and the Tigris (Mesopotamia), around 4000 BC, is a model for this. The Russian Secretary-General of the CPSU, M. Gorbachev, gave a clear signal in the magazine Schering&Inslag', third volume 1990, no. 4: "Certainly, Europe has a future", was his conviction, and he meant that including the Russian Federation. The Western countries, however, rejected this gesture. 2 189 Let us go back to the origins of the Torah, at least as far as is known. When King Hammurabi (ca. 1780 B.C.) wanted to label his legal practice, he said: "An eye for an eye, a tooth for a tooth". A rule, which in antiquity itself already led to discussion, because a literal application makes little sense. Evil cannot be ‘solved’ with evil. If at first ‘revenge’ was seen as a just measure, ‘equalization’ (in the sense of ‘settlement’ instead of ‘retaliation’) soon became practice. So, to this day this rule is the basis for law-making. It is likely that kings in antiquity wanted to curb revenge. The rule should then be interpreted poetically, by way of metaphor. It means that losing an 'eye' is worse than losing a 'tooth', and so the retaliation must be correspondingly great when you are wronged by someone. For example: if you lose an 'eye', you are fined 5000 euros and if you lose a 'tooth', you are fined 1000 euros, to be given to the injured party who then has no further claim for revenge. The case is then, so to speak, settled and finished for both parties. Differences in the severity of harm are visible to all, so the law must respond to this. This form of exercising the law is therefore so valuable because the alternative would be a practice of vendetta and escalation, based on the fact that some forms of crime (murder, torture, rape) irrevocably place the injured party at a permanent disadvantage and the perpetrator at an equally permanent advantage, which could encourage these forms of crime. Moreover, the right itself would be as much the 'victim', namely deprived. As such, a settlement brought about through the mediation of a judicial authority is, in a sense, a benefit. We may assume that Hammurabi's codex did indeed seek to erect a dam against the violence in society. Without knowing it himself, he was ahead of the Jewish scribes (from 597 to 538 BC in Babylonian captivity) in establishing rules of conduct and what subsequently became known as the Torah. They adopted the law of "an eye for an eye, a tooth for a tooth" and none other than Jesus of Nazareth, over five hundred years later, did not oppose this principle of law at all. He wanted to make the law more meaningful by also allowing mercy to prevail over justice, especially if it turns out that the circumstances were to the disadvantage of the perpetrator. Forgiveness is necessary to give society a future. Let us try to bring this Torah a little closer to our minds and we will see exactly what the situation is with this 'constitution'. In the years 597 to 586 BC the Babylonians wreaked havoc in the area of the Crescent. Inhabitants of the area around Jerusalem, a city around the temple of one king Solomon ('peace' is his name!) had to face a punishment. The recipe in those days was simple: an unwilling people was brought into a state of disarray by a ruler who deported the ruling elite as slaves to the capital, in this case Babylon. In place of this elite, vassals were sometimes appointed. The Assyrians did this already a century earlier with the area around Samaria. Then the elite was deported to Assyria. So, it was a tried and tested recipe. The area then fell back into a kind of primal state of lack of government and culture, in short of powerlessness. That was then. Unfortunately, it is still happening. In March-April 2022, we saw a similar course of action on the part of the Russian President, Putin, when he put Ukraine into a state of disorientation, with murder, mayhem, destruction and deportations, with the intention of 190 preventing the country from becoming a member of NATO and the European Union without the consent of Russia. In his view, Ukraine was deviating from the historical ties it had with Russia and with both their interests. Europe has a long history of trial and error when it comes to the ultimate goal: the creation of a federative union in which the sovereignty of every European is respected, valued and guaranteed. Putin is trying to disrupt the drive, which has existed for two centuries, to make Europe a federal state - a state of unity, solidarity, security and prosperity - in order to subject it to the power of an absolute ruler. The Assyrians of antiquity did the same: they structurally and administratively crippled parts of the ruling empire. It marked the downfall of such a people, an unprecedented drama. But in the period between 586 and 537 BC, things were different. This was because the leaders of the tribe of the Judeans were skilled at remembering, telling and retelling ancient stories from their past. They took the whole narrative-literary 'library' of their tribe, as it were, to Babylon, and then a miracle happened: instead of being distraught, they rewrote the loose texts into a scroll with a clear motive, namely, to answer the question of what a just society is and what it needs, a story of liberation from slavery. It is not surprising that some of the present 27 federal states in the world became federal states after World War II as a result of the process of decolonisation. The relationship between 'liberation from slavery' and 'federal organisation' is contained in the concept of 'sovereignty', described in the US Declaration of Independence of 1776 as: "All sovereignty rests with the people." We know the aforementioned scroll by the name of 'Deuteronomy' (second law). You can see it as the birth of a constitution, a document that could bind. With the word 'second' they also made a connection between the old Mosaic law from before the destruction of Jerusalem (see Exodus) with the new law, the Torah. This activity received an enormous boost when a new king took office in Babylon. He was not of Babylonian, but of Persian descent. Babylon underwent a transition: the administration of state and country was overhauled. Cyrus II was a man with a clear mind, who realised that the small group of Judean writers (‘pen pushers’) at his court had produced a product of great stature. They reminded him of the old idea that a great empire could only exist by delegating tasks to the elders of the indigenous peoples in its area. All descendants of slaves were therefore set free: they had to return to their own territory, but with a task that was in accordance with the ('federal' avant la lettre!) constitution of the Persian empire. Cyrus II thought he could prevent the decline of the empire this way. The fall of Assur and Babylon had taught him that. He wanted to do things differently! But also among the ex-slaves, i.e. Nechemiah, Esra and the then prophet Ezekiel, the idea had taken hold that a ruler who works with violence will sooner or later bring about his own downfall. Even then people realised that power-driven unitarianism destroys itself in the long run. And that spreading power to the basis of a society enables the sovereign to remain sovereign. If not, he was eventually deposed. Europe has plenty of examples of this. Implicitly, this political conviction was already present in the Torah. Nechemiah, a statesman with administrative qualities, and Esra, head of the priestly caste, started a project in Jerusalem in 537 BC that could be called ‘The Torah Republic’, initially against the wishes of 191 the inhabitants who had not experienced the exile. So not a king, as they thought? No, in the first place the Persian ruler was their king and in the second place the elders recorded in the Torah that all people were equal in their inequality. So, there was no place for a king in a – then3 - 'modern' state. They had actually already picked up on this in an ancient story about the prophet Samuel who had opposed the appointment of a king much earlier. In the time of Nechemiah and Esra, the struggle for the monarchy focused on the question of the function of a king. He should be above the parties, but as a person also under the Torah as a constitution: they already knew that no one stands above the rule of law. This meant a function that served the entire nation, with the explicit stipulation that a meaningful kingship did not include any privileges. In short: the 'Torah Republic', with its unmistakable - as yet unrecognized and unformulated - federalist characteristics, was tolerated by the Persian monarch as an authentic culturalfolkloristic phenomenon. He was concerned with the consolidation of power, for himself and his successors. This situation shows how embryonic federalism was at that time, but it also shows that power, which was taken for granted by the king, was already under discussion at that time. This is a phenomenon that is repeated throughout history. In 1251, in the Magna Carta, the English people made it clear to their king John Lackland that he had to respect the rights of the people, otherwise they would depose him. The Netherlands sent the Spanish king away with the Placcard of Abandoning in 1581. The 13 English colonies in North America ratified in 1787-1789 their federal constitution based on the explicit demand that no sovereign should ever rule over them again. Federalism and law Here we come to an important point: the development of law is not a matter of a clear, linear and traceable sequence of events, but takes place in a tangled dynamic process of centuries of cultural development, in which thousands of people have a share. Hammurabi, too, was not the ‘inventor’ of his codex on his own, but was already drawing on the wisdom of many sages and of many simple people with an experience of past injustice who preceded him. In this respect, the birth of the world's first federation, that of America in 1787, was no different. It was the fruit of five months of deliberation - by 55 people in the Philadelphia Convention - on the wealth of political-philosophical thought from Aristotle onwards. If ever a constitution was written that derived its existence from philosophy, it is the Federal Constitution of 1787. The drafters of this constitution were thus able to draw inspiration from the wisdom of many predecessors and from the failure of the Confederacy. In the same way, the Judeans around Jerusalem did not have the exclusive right to discover the Torah. They too relied on ancient experiences, stories and testimonies of people who were long dead. In this way, people are all related to each other. No one can say: "I deserved it! or "We did it" or "We started it." No one can say, for example, "We made it happen that the ‘Placcard of Abandoning’ (1581)4 came into being! Those who think like that think 3 The time course of this history is unfortunately unclear. In the book of Nehemiah, the Persian ruler is called Artachshast. 4 It is no coincidence that the "Republic of the Seven Dutch Provinces" came into being, in which the appointment of a king was barred and a kind of 'confederation' saw the light of day. 192 statically, whereas reality is always dynamic, that is within the hectic of a constant stream of events, which nobody can control. You can only say that at certain times there are 'nodes' of development, rapids in the history of humanity, alternating with periods of near standstill or even regression. As such, one can compare the codex of Hammurabi with the new administration and legal conception of the Persian kings, which - more or less by accident made possible the effectuation of the Torah. With regard to this stream of events, the evolution of the European state system has marked nodes or moments of transition to another phase. Before 1600, the European state system was dominated by nobles, princes and the Pope of Rome. Between the 17th century and the end of WWII, there was the dominance of nation states. After WWII, administrative Europe acquired a system of treaties. And now, due to the Ukraine crisis, the strengthening of the unity of European states by adopting a federal form of government for the care of common interests is high on the agenda. The meaning of the Torah It is necessary to revive the Torah in a globalizing world, including that amendment of 'mercy before justice'. Even for a man like Putin and his advisors this is necessary, when it turns out that they were misled by the Western countries, when NATO - against agreements continuously expanded to the east. The Torah stands for a fair trial, which replaces reckoning and scapegoating. In a certain sense the Torah stands up for the sinner, namely in such a way that 'understanding the circumstances in which the injustice took place' does not mean that the seriousness of the injustice is weakened or doubted, nor that the sinner can get away with it. The Torah rejects a 'sorry society'. The written law, as applied in many countries, which has replaced a cruel penal practice, is proof of the correctness of the Torah: mercy is a sign of civilisation, but it must not turn into a practice of indulgence. The tendency nowadays for aggrieved people to be allowed to express their findings in court is also a step in the right direction. The next is that perpetrators and victims are given the chance to turn the crime into the beginning of a new future for both. The support of a federal society is an indispensable condition for this. The sinner must not be identified with his crime. He must be safeguarded from revenge, so that he has the chance to mend his ways. The Torah separated from the Jewish context For a correct understanding, the Torah is detached from the Jewish context and Jewish culture. The culture is anything but worthless. Even if you see the Torah as a universal constitution for all people of all times and all places, in which human dignity grows from a dead letter into a universal legal practice, the Torah can only be actual and therefore effective in a diversity of cultures that is shared by many people. Jewish sages and prophets understood this very well. They knew that the ‘weak’ Torah needed a tradition of scripture and culture to survive. There are moments in the history of that people around Jerusalem panicked over the possibility of the survival of the Torah. The panic has led many groups in the time in which Jesus lived - under the Roman tyranny - to lose track and, for example, to take up arms or to flee into the desert. 193 In the political field of influence that then prevailed, Jesus chose a radical Torah practice, which he expressed and justified in the Sermon on the Mount (see Matthew 5-7). He followed the path of his conscience, supported by the way he read the Scriptures. He discovered the Torah in the same way that we can all discover the Torah in principle: by doing, an exercise in living together, thus gaining insight into ourselves, a self-revelation. He consistently avoided the us-versus-them mentality and saw mankind as one big family. That is why he always took sides with the human being who was spit out by society. In doing so, he remained within the contours of a universal constitution for life. This attitude cost him his life, but the result was that his followers, in a clarity of mind, came back from going down the wrong road. Although the 'Pax Romana', as a competitor of the Torah, made itself felt, they humbly chose the path of the Gospel, without irritating the Romans with a movement of resistance. The Torah has an ancient history of patience and perseverance. Do you think this passage about Jesus and his interpretation of the Torah falls too far outside the concept of 'federalism'? I do not. Take Altiero Spinelli, for example, the founder of postwar thinking on a constitutional federal Europe. Of course, it would be inappropriate to call him the 'Jesus' of European federalism. But his Ventotene Manifesto is not just another scripture alongside many thousands of others, devoid of meaning for a peacefully united Europe. His Manifesto contains a well-thought-out system of rules and conditions by which, after the devastating world war, coherence and forgiveness (see how we now deal with Germany) could be regained. That cohesion has been achieved to some extent. However, it is now under pressure again, because it is slowly becoming clear that the system of treaties (treaties are exercises in power) with which one wanted to cash in on unity after WWII, turns out to be too weak after all, as soon as internal conflicts arise and a despot from outside comes to disturb the order. We would do well to realise what Spinelli proposed back in the 1940s: a democratic constitutional federal Europe. Knowing that it can be based on the ideas of the Torah. The Torah was already a solid basis for the idea of a federation in antiquity, around the beginning of our era. It contained rules to the effect that every nation was there for every other nation and that the infamous 'us' versus 'them' was both an illusion and a wickedness. A curse, in other words. Universality and "the Earth is for all and is nobody's property or merit" was from the very beginning the primal ground of this legal system, thus including "an eye for an eye, a tooth for a tooth" in the interpretation of the Mosaic law, precisely to indicate that all people are equal in their fundamental inequality. No one is above the law: that is Torah! And that is federalism! Literature G.J. de Grunt, Niets menselijks komt vanzelf tot stand. Een inleiding in de wijsgerige antropologie. Vuga – uitgeverij, ’s-Gravenhage 1981. Han Fortmann, Heel de Mens. Reflecties over de menselijke mogelijkheden. Ambo, Bilthoven 1972. Edy Korthals Altes, Europa, ontwaak! Over de noodzaak van spirituele vernieuwing. Uitgeverij Damon, Budel 2001. Peter Beyer, Religions in Global Society. Abingdon Oxon en New York 2006. 194 Fenna van den Burg e.a. , Vrede en oorlog. Opstellen voor prof. mr. B.V.A. Röling. Nieuwe ontwikkelingen in de polemologie. Synopsis, Groningen 1977. Ton Veerkamp, Deze wereld anders. Politieke geschiedenis van het Grote Verhaal. Skandalon – De Nieuwe Liefde, Vught-Amsterdam 2014. Carel van Schaik en Kai Michel, Het Oerboek van de Mens. De evolutie en de Bijbel. Uitgeverij Balans, Amsterdam 2014. Anton Wessels, Thora, Evangelie en Koran. 3 boeken, 2 steden, 1 verhaal. Uitgeverij Kok, Kampen 2010. Karl Jaspers, De schuldvraag. De oorlog voorbij. En nu moeten we er gezamenlijk uitkomen. Essay, gepubliceerd in Trouw Tijdgeest, Amsterdam 2 april 2022, p. 19-21. Piet Terhal, Wegen naar een menswaardige toekomst. Pierre Teilhard de Chardin in gesprek met Martin Buber en Jan Tinbergen. Uitgeverij Aspekt, Soesterberg 2015. Evelien van Asperen, Voorbij de interculturele paradox. De methode Diavers. Lecturium Uitgeverij, 2011. Bastaan Rijpkema, René Cuperus en Paul Cliteur, Wat te doen met antidemocratische partijen? De oratie van George van den Bergh uit 1936. Elsevier, Amsterdam 2014. *** 195 Attribution of Values and Virtues in ‘The Federated States of Europe’ Berend W. Scheperboer : : CEO law firm Scheperboer & Parris, Curaçao, b.scheperboer@spcuraçao.com Foreword Below I briefly present thoughts that formed the basis of my contributions to the Constitution for ‘The Federated States of Europe’, by the FAEF Citizens' Convention. That Constitution is in several respects incomparable with other federal constitutions. Not only because of its compactness of only ten articles, preceded by a Preamble, but especially because of the formulation of rules that give a new dimension to 21 st century democracy. In part, these groundbreaking rules are the result of an evolutionary process that took shape and content many centuries ago. They stem from metaphysical-philosophical-religious thinking. However, the content of the Constitution stems also from modern thinking about democracy, a system of values that is under serious pressure some seventy years after the Second World War. Threatened by increasing autocratization, not only in Europe. I foresee that several trilemmas will have to be resolved in the European context. That is why I thought it sensible to start from a structure in which the three institutional entities of ‘The Federated States of Europe’ (hereafter FSE) - the European Congress, the House of Citizens and the House of States - relate to each other in a complementary way. But, despite their differences, because of the necessary trias politica and the checks and balances that go with it, they will also have to cooperate with each other. This study is a more detailed elaboration of the three intersecting circles 1 that, in the Explanatory Memorandum to Article I of the Federal Constitution for the FSE, represent three subsidiary worlds of thought in which the middle part - the part that the three circles have in common - expresses the saying of Confucius: “When de sabers are rusted and the shovels glisten, when the steps of the temples are worn out by the feet of the faithful and grass grows in the courtyards of the courts, when the prisons are empty and the granaries are full, when doctors walk and the bakers drive, then the empire is well governed”. My argument is largely based on a high level of abstraction. I revert to the conceptual framework of Hermes Trismegistus2, a mythical figure who influenced the thinking of Coornhert, Lipsius, Stevin, Newton and others. Furthermore, I pay attention to the organisational theories of Max Weber, the Trinity of the Hebrew and Christian Godhead, the separation into three powers of Jean-Jacques Rousseau, three of the administratively applicable ethical forms of thinking, the existing judicial, social and economic policy sectors and their normative relationship to social moral, cultural and financial values. As an aside, I note that my referral to religious insights from a very distant past do not mean that the 1 Circle 1 represents the thinking of the Citizens, Circle 2 that of the Member States and Circle 3 that of the Federation. See the Explanatory Memorandum on Article I, paragraph ‘The Philosophical Basis’. 2 “The ALL is Mind; The Universe is mental” – The Kybalion, the 7 hermetische principles. https://www.sacred-texts.com/eso/kyb/kyb04.htm 196 federal Constitution of the FSE represents a religion. ‘The Federated States of Europe’ are a secular federation. This study deals with a complex matter, material for extensive deliberation in the drafting of further laws and Rules of Procedure for the Federal European Congress and its two Houses: the House of Citizens and the House of States. Who intervenes why, how and what in problem fields, problem definitions and problem solutions will have to be further defined and described. But that is beyond the scope of the Federal Constitution itself. In addition to chemical, physical, mathematical and biological knowledge of the material world, as well as insights in the field of legal history, philosophy of law and legal theology, I refer to the existence of an esoteric world, in which the twenty-seven letters of the Hebrew alphabet (including the final letters) are the interpretation of a spiritual, mathematically existent world of as many dimensions3, the elaboration of which must remain reserved for a future, in which relations of federal bodies in their mutual relations will have to find further definition, in order for the federation to function as a 'humanity'. Qualities and values I will now introduce some of the thinking behind this study. The mythical figure Hermes Trismegistus was seen as a philosopher, king and priest. Thus, he represents three worlds of thought, which together comprise seven - cardinal - values. The philosopher uses three questions in constituting his thinking world: why, how and what? The king uses three corresponding levels of decision making: strategic, tactical and operational. The (Christian) priest gives substance to the relationship of the triune deity with humanity. For the triune deity, I would like to refer not only to the Father/Son relationship, but also to the connecting Holy Spirit relationship in Christianity, which I would like to call the 'cohumanity factor'. Without that factor, man - as in a concentration camp - falls into nonexistence. The Kabbalistic vision of an as Ain undifferentiated consciousness, within which an as AinSoph differentiated self-consciousness arises, to an as Ain-Soph-Aur differentiated consciousness, out of which all material manifestations from universes to atomic particles to living organisms have arisen, can also contribute to structuring thought worlds in their mutual relations. There are no opposites in creation, only counterparts, and they are complementary even in the sense that the one cannot achieve its purpose without the other. It is the basis of thinking in terms of subsidiarity. Where, by virtue of polarity, men and women take care of the expression of life as an expression of a desire for itself (Khalil Gibran4), philosopher, king 3 The Deep Structure of the Cube of Space: Psychological Space: Metapsychology: The Dimensions of Consciousness and the Structure of Human Experience. http://www.psyche.com/psyche/cube/cube.html. 4 Kahlil Gibran, Your children are not your children. http://www/katinkahesselink.net/other/kahlil-gibran-children.html 197 and priest will have to develop into complementary counterparts and solve the resulting trilemmas in a structural way. These preliminary considerations call for a reflection on the internal relationships of the European Congress, the House of Citizens and the House of States. In so doing, we should not ignore the insights of Freedom, Equality and Fraternity - acquired in the French Revolution. However, this concept was formulated according to the requirements of a time when Citizens were not considered to have any sovereignty. And that is precisely what ‘The Federated States of Europe’ is based on. The FSE-Constitution sees the sovereign Citizens as co-owners of the Federation. It is thus, partly through its various forms of citizen participation, a central element of the Constitution that formulates - in layman's language the ethical terms of a 'solidary and integral humanism', as propagated in the Compendium5. In the light of the above, I would therefore like to reverse the above-mentioned value-trite: • 'humanity' for brotherhood; • 'equality' in terms of dignity and rights; • 'freedom' of property, possession and development, and - for a foundation of thought - link those values as guidelines to the European Congress, the House of Citizens and the House of States respectively. See the drawing of three circles in which I depict the complementarity of the three equal worlds of thought. Legenda 5 2 4 1 6 The four cardinal virtues are: 1. Prudentia – wisdom. 2. Justitia – justice. 3. Temperantia – moderation. 4. Fortitudo – courage. 3 7 LEGENDA De vier kardinale deugden: 1. Prudentia - Wijsheid; 2. Iustitia - Rechtvaardigheid; 3. Temperantia - Gematigdheid; 4. Fortitudo - Dapperheid; and the three theologal virtues: 5. Fides – faithfulness. 6. Spes – hopefulness. 7. Caritas – humaneness. en de drie theologale deugden: 5. Fides - Getrouwheid; 6. Spes - Hoopvolheid; 7. Caritas - Menslievendheid. In co-humanity, I see the basic value from which the European Congress takes legal-moral decisions: that is doing the good thing in circle area 5. In equality, I see the basic value from which the House of States takes socio-cultural decisions: that is doing the beauty thing in circle area 6. In freedom, I see the fundamental value from which the House of Citizens makes economicfinancial decisions: that is doing the true thing in circle area 7. 5 Compendium of the Social Doctrine of the Church. https://www.vatican.va/roman_curia/pontifical_councils/justpeace/documents/rc_pc_justpeace_doc_200605 26_compendio-dott-soc_en.html. 198 But these circle areas contain more insights: The combination of circle 5 and 6: the promotion of justice in circle area 2. The combination of circle 6 and 7: the promotion of moderation in circle area 3. The combination of circle 5 and circle 7: the promotion of courage in circle area 4. The combination of segments 2, 3 and 4: the promotion of wisdom in circle area 1. Self-awareness All men, women and children in the world have a self-consciousness derived from the ‘Primal Will to Good’6 of which every human being is an expression. This self-consciousness is accorded all the respect due to a sovereign God, the first cause of life and creator of all forms of life, in His Cosmos. The three central bodies of FSE consist of representatives of all men and women, with their children, who enjoy citizenship of this new federation. They are partly democratically elected, partly appointed. But all together they represent the interests of the Citizens and the States. To them - all men and women, with their children - they pay homage. Levels and functions As has been said, the FSE-Constitution recognises three levels of organisation: a European Congress, a House of Citizens and a House of States, each with their respective exhaustively enumerated tasks and powers. However, I would like to overlay this with an extra template. Think of the European Congress as a strategic policy body that answers 'why' questions, the House of States as a tactical administrative body that answers 'how' questions and the House of Citizens as an operational management body that answers 'what' questions. This provides a basis for the way in which these bodies interact organizationally, in accordance with the norms of established organisation theories. Incidentally, since Max Weber, these have offered little new in the way of governance, management, advice and supervision. I will ignore that now. These are subjects that fall outside the scope of the Constitution and should be regulated partly in further legislation under the Constitution and partly in Rules of Procedure of these three main organs of the Federation. Areas of focus For human coexistence, these three organisational levels constitute special areas of interest, namely: 1) a legal-moral area, for which I would like to recommend Aristotle's teleological virtue ethics; 2) a socio-cultural area, for which I would like to propose Kant's duty ethics; and 3) an economic-financial area, for which I would like to choose the utilitarian consequences ethics. The FSE-bodies may thus be faced with an ethical7 trilemma, but they are certainly also faced with economic trilemmas8. Relevance of these considerations for the Netherlands Antilles On Curaçao - my home and workplace and the largest of the six islands that made up the Netherlands Antilles - thinking in terms of independence, whether or not by means of The Pattern on the Trestleboard: 1. “I am a center of expression for the Primal Will-to-Good which eternally creates and sustains the Universe.” https://gates-of-light.com/the-pattern-on-the-trestleboard/ 7 Trilemma. https://www.google.com/search?q=trilemma&ie=UTF-8&oe=UTF-8&hl=nl-cw&client=safari. 8 Trilemma definition: https://www.investopedia.com/terms/t/trilemma.asp. 6 199 federalisation, has been going on for many years. So far without result. However, it is becoming increasingly clear that political and economic independence from the Netherlands can only succeed by abandoning the half-hearted legal models with which the Netherlands has shaped the decolonisation of the 'West Indies' since World War II. A new State regulation of 2010 gave three islands the status of 'country'. The three others were given the status of Dutch municipalities. A legal monstrosity that shows serious shortcomings in terms of functionality. The reality is a continuing lack of quality of life for the majority of children, women and men. Self-determination, a right enshrined in the United Nations Charter, has never been realised. It is a sign of the weakness of the United Nations to actually implement its own regulation. Like the treaty-based European Union, it shows the absence of democratic foundations and effective administrative power. It would serve the quality of life of Caribbean children, their mothers and fathers very well if the former British and Dutch colonies could form a federal state together on the basis of the thinking of the federal constitution of the FSE, and of the in-depth studies that give it a further foundation. If such a federal state is not possible, it is recommended that both groups of former colonies - thus both English and Dutch - be given a formal status within The Federated States of Europe as proposed in the Explanatory Memorandum to Article II - The Legislative Branch of the Constitution. It is no longer about 'us'. It is about 'our children' as our responsibility for a quality of future humanity. The Preamble to the Federal Constitution for The Federated States of Europe states that the central task of governments is to contribute to the happiness of their Citizens. This starts with children. Their upbringing must be aimed at internalizing complexes of values and norms. These should give form and substance to their virtuous excellence. As one of the most important conditions for 'happiness'. In the Curaçao community, I have been working as a lawyer for the last thirty years, specializing in criminal law. The last twenty years also in immigration law. The fact that currently more than twenty percent of the prison population consists of underage children prompted me to write the reflections of this study. Creating the conditions for happiness and giving it substance from birth - seems to me to be an all-embracing task for the new federation. Not only in Europe. Also in the Caribbean. *** 200 The concept of ‘FEDERATION’ in the Constitution for the Federation of EARTH Glen T. Martin Professor Emeritus of Philosophy, President of the World Constitution and Parliament Association (WCPA), Executive Director of the Earth Constitution Institute (ECI), cooperating worldwide organizations that sponsor the Constitution for the Federation of Earth, gmartin@radford.edu The Framework for Law and Government We thinkers who are concerned with uniting peoples and nations under better governance (and under proper or right governance) are not and should not be primarily concerned with utility, that is, with patching together some framework for governing our planet that “works better.” For given the potentially catastrophic character of our present human situation (facing possible thermonuclear holocaust as well as climate collapse portending human extinction1), we require a conception of planetary and regional governance based on the truth of human beings and human civilization. Only proper world government based on such truth can lead us to a flourishing and a fulfillment that transcends our present trajectory toward catastrophe and extinction. The federal principle at the heart of the Constitution for the Federation of Earth involves a paradigm shift from the outdated “Newtonian” atomistic ontology that assumes the world is composed of independent parts that may or may not unite with one another while retaining some portion of their “independent part” status to the contemporary “Einsteinian” holistic ontology in which parts and wholes are aspects of one interdependent and inseparable, multileveled reality.2 Given the current apparent death-wish of humanity refusing to make this paradigm-shift necessary to survival, the Earth Constitution, in my view, offers a true beacon of redeeming light within the darkness and ignorance of our present civilization. The key insight behind the Earth Constitution is that nation-states are not ontological realities. They have no status independent of the rest of humanity. This does not mean absorption or obliteration, because under the contemporary holistic paradigm there are no wholes without parts, and no parts without their wholes. National egoisms have always denied this principle making the world system a perpetual war-system. Today, the world’s imperial lord, the United States, even names itself “the exceptional nation” in which it does not need to honor even international law or join any multipolar “community of nations.” 3 But in any event our planet Earth is not, and cannot be, a “community of nations,” because authentic communities can only be made up of persons, who share a common humanity, and nation-states as autonomous “parts” that can somehow combine into a planetary 1 See Glen T. Martin, The Earth Constitution Solution: Design for a Living Planet. Independence, VA: Peace Pentagon Press, 2021. For a collection of my articles on these topics see “Glen’s Blog” on www.oneworldrenaissance.com. The Constitution for the Federation of Earth can be found on-line at www.earthconstitution.world and www.wcpa.global and is available in print from The Institute for Economic Democracy Press, Appomattox, VA, 2010, with a “pocket edition” in 2014. 2 See Errol E. Harris, Apocalypse and Paradigm: Science and Everyday Thinking. Westport, CT: Praeger Publishers, 2000. 3 See Alfred W. McCoy, In the Shadow of the American Century: The Rise and Decline of US Global Power. Chicago: Haymarket Books, 2017. 201 community is nothing more than an anachronistic Newtonian illusion. In the Earth Constitution the federal principle is holistic and not based on atomistic illusions. Nations become part of humanity and humanity is understood as one civilization of persons-incommunity with one planetary (and perhaps divine) destiny. There is no other viable way to move into a redeemed human future in which there is both survival and flourishing. Governing ourselves must be based on realities and must not make concessions to nationalistic fantasies that the parts have some reality apart from the whole. The concept of a “sovereign” person. I use this concept, drawn from such world federalist leaders as Garry Davis (who founded the World Service Authority (WSA) as an embryo for a “World Government of World Citizens”) 4 to describe the federalism of the Earth Constitution. That is, government, and the right of governing, comes from the citizens, from individual human beings together in society. There is no right of governing adhering to royalty, inheritance, race, gender, wealth, tradition, territory, historical necessity, or the infact possession of power (as positivism holds).5 Government is for and about people, and its legitimate authority arises only from the people. Immanuel Kant also highlighted sovereign persons as those who can think independently in his 1784 essay “What Is Enlightenment?” And thinkers today have elaborated this growth toward autonomy in terms of its reaching beyond ethnocentric limitations to non-egoistic universality such as that embodied in the Categorical Imperative: “Always treat every person as an end in themselves, never merely as a means.”6 Such universality implies for Kant the goal of history as a “perfect civil union” within a “universal cosmopolitan state.” 7 Human diversity is real and therefore has its own rights of existence, especially as respect for the autonomy of mature, freely thinking persons. But this very autonomy eventuates in a universality which sees that the many must be embraced by a true moral unity of governing (a true federation in which the freedom of each is only limited by the need for an equal freedom for all8) and not by any loose arrangement of parts claiming autonomy apart from universality (a confederation). People are always in community. There is no Lockean autonomous individual apart from the human community and the human project from which our individuality is holistically inseparable. Government arises from the people, who are free, self-conscious beings participating in the human community without which they could not exist. These intertwined dimensions—persons in community—are the real source of legitimate governing. 4 See Garry Davis, Passport to Freedom: A Guide for World Citizens. Washington, DC: Seven Locks Press, 1992. See Glen T. Martin, Ascent to Freedom: Practical and Philosophical Foundations of Democratic World Law. Appomattox, VA: Institute for Economic Democracy Press, 2008, Chapters 9-12. 6 See, e.g., Lawrence Kohlberg, The Psychology of Moral Development: Volume Two, The Nature and Validity of Moral Stages. San Francisco: Harper & Row, 1984; Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development. Cambridge: Harvard University Press, 1982; Jürgen Habermas, Communication and the Evolution of Society. Trans. Thomas McCarthy. Boston: Beacon Press, 1979. 7 Immanuel Kant, Perpetual Peace and Other Essays. Fred Humphrey, Trans. Indianapolis: Hackett Publishing, 1983, pp. 38 & 41. 8 Ibid., p. 78. 5 202 The UN Universal Declaration of Human Rights assumes, and embodies, this principle, going th at least back to Althusius and Spinoza in 17 century Netherlands.9 Its Preamble states correctly the basis for all government: “ recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” All legitimate government derives from this foundation of human dignity. Article 2 of the Declaration states that “everyone is entitled to the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.” “Nations” are excluded as a source of our rights and freedoms. Our common human dignity is the source. Individual dignity and our common humanity are inseparable. 10 This is what constitutes a “sovereign person.” Persons, as a community, empower governments to (1) protect their universal sovereign human rights, and (2) foster this endeavor within the framework of the common good (since everyone has the right to this same equal protection). This is clearly the basis of the UN Declaration Article 21.3: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Over the past century, a number of Western philosophers of law have elaborated these principles. In his classic book, Taking Rights Seriously, Ronald Dworkin argues that the proper and most general function of government is “respect and concern” for each individual being governed.11 In Law’s Empire, he articulates this in terms of “justice, fairness, and procedural due process.”12 Philosopher Alan Gewirth, in The Community of Rights, speaks of proper government as “an institutionalization of love,” that is, the function of law is for citizens to be “enabled to live lives of dignity, self-fulfillment, and mutuality of respect.”13 Lon Fuller, in The Morality of Law, argues that the law imposes a “morality of duty” based on the common good with the purpose of empowering the “morality of aspiration” in the citizens. Obeying enforceable law is our duty so that we may freely seek to actualize our personal aspirations.14 David Luban, in Legal Ethics and Human Dignity, affirms that the human “dignity” of citizens is the object of law which “provides a framework for the citizen within which to live his own life.” He declares: “To be a law-giver rather than a command15 giver is to treat the citizen as a self-determining agent.” Finally, John Finnis, in Natural Law and Natural Rights, argues that the rule of law promotes the common good in which respect 9 Johannes Althusius, Politica: An Abridged Translation of Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples. Frederick S. Carney, Trans. Indianapolis: Liberty Fund, 1995. Also, Baruch Spinoza, Theological-Political Treatise: Second Edition. Samuel Shirley, Trans. New York: Hackett Publishers, 1998. 10 See my chapter on this idea in Global Democracy and Human Self-Transcendence: The Power of the Future for Planetary Transformation. London: Cambridge Scholars, 2018, Chapter 2. 11 Ronald Dworkin, Taking Rights Seriously. Cambridge: Harvard University Press, 1978, pp. 271-72. 12 Ronald Dworkin, Law’s Empire. Cambridge: Harvard University Press, 1986, pp. 404-07. 13 Alan Gewirth, The Community of Rights. Chicago: University of Chicago Press, 1996, p. xv 14 Lon Fuller, The Morality of Law: Revised Edition. New Haven: Yale University Press, 1969. 15 David Luban, Legal Ethics and Human Dignity. Cambridge: Cambridge University Press, 2007, p. 111. 203 for human rights is a fundamental component. He writes: “the modern conception of human rights is a way of sketching the outlines of the common good, various aspects of well-being within community.” 16 If there is such a profound consensus among today’s philosophers of law, why has the world since the Second World War suffered more than 150 wars, with many millions dead or displaced, and with on-going human rights violations for hundreds of millions of the Earth’s citizens?17 The answer is explicit in the UN Universal declaration’s recognition that respect for human dignity is the foundation for freedom, justice, and peace in the world and is implicit in Article 28: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” The world lacks this order. The world defeats the rights and freedoms listed in the UN Declaration. What could be more obvious? Democracy is a universal. Human rights are universal. The human community is universal. Yet the world is divided into apparently incommensurable fragments that constitute a war-system, an immorality and corruption system, and ultimately an omnicidal system. Nation-states as such have no rights. While the word “democracy” means “rule of the people,” the meanings of democracy go much deeper. Democracy means that the relationship between government and the people is a moral one, as we have seen in all the philosophers cited above, and that personal dignity in community is the foundation for all legitimate law and government. Our ontological situation does not arise from any partial communities, often called nation-states. Personal dignity in community means that every person has dignity because they are part of the human community.18 The Concept of Federation Some common definitions of “federation” include: “a group of states with a central government but independence in internal affairs” or “an organization or group within which smaller divisions have some degree of internal autonomy.” The second definition is much better because there is no such thing, whether for persons, or groups, or states as “independence in internal affairs.” All persons and groups belong to human society and the freedom of all persons and groups is limited by that fact. Our so-called “internal affairs” are inextricably linked to the wholes of which we are parts and cannot be intelligibly separated from those wholes. We are in internal relations with the wholes that embrace us and with which we are necessarily linked. Government must protect the common good to maximize the freedom of each without compromising the equal freedom of all. In an emergency such as a natural disaster, for example, government may 16 17 John Finnis, Natural Law and Natural Rights. Oxford: Clarendon Press, 1980, p. 214. See Jonathan Glover, Humanity: A Moral History of the 20 th Century. New Haven: Yale University Press, 1999. 18 French philosopher Emmanuel Levinas writes: “To be for the other otherwise than being and before culture, to serve the other morally, and to serve all others in justice—here lies the ultimate exigency of meaning and the dignity of humankind.” Humanism of the Other. Nidra Poller, Trans. Chicago: University of Illinois Press, 2006, p. xxxvi. 204 restrict personal freedom or group freedom severely, on the legitimate grounds of protecting the common good and the equal dignity of all concerned. Hence, a federation is more properly defined as “an organization or group within which smaller divisions have some degree of internal autonomy.” As several of the philosophers cited above maintained, the function of government is to respect and empower the personal self- determination of citizens within the framework of the equality of all (justice and the common good). Such respect is the very basis of “freedom, justice and peace in the world.” Therefore, the ultimate federation is the organization of all the people in the world to protect and defend their individual self-determination or, as the UN Universal Declaration puts it, their “right to life, liberty, and security of person.” The concept of federation can, but does not necessarily have to, mean the uniting of nationstates, for human persons are the ultimate sovereign realities that need to be united in a universal federation. If by “nation-states” we mean the concept implicit in the Westphalian Peace Treaty of 1648 that there be absolute territorial boundaries with governments having autonomy over their internal affairs within these boundaries and having independence with respect to their external affairs (i.e., all other such governments), then the concept is incoherent from the very beginning. Reality does not lend itself to this kind of imaginary partitioning. Kant has already pointed this out in his essays on “Perpetual Peace” (1795) and “Theory and Practice” (1793).19 The entire universe as we know it is an evolving dynamic integration of individuals within wholes on multiple levels having both external and (necessarily) internal relations to all other such wholes.20 A system of independent national units with the right to militarize (autonomy over internal affairs) in external relations to other such units (including the right to go to war) is a conceptual and moral absurdity.21 No wonder the world has been chaos since that time. A true federation must be based on a principle of unity in diversity such that the unity bears on all the doings of the groups and individuals within that diversity. If the unity is government, then it empowers and protects the freedom of the persons within the federation just as it limits their actions to ensure the common good. Hence, within any true federation the “smaller divisions,” whether groups or persons (for persons have freedom of association into groups), have a “limited autonomy” that is both protected and empowered by enforceable law, and no person or group has external relations such that they can act contrary to the common good or independently of the unity of the whole. Just as crime (on the part of individuals or groups) is enforceably prohibited within a true, federated democracy, so war is impossible, and the units of the federation cannot be militarized. 19 Kant, op.cit., Perpetual Peace and Other Essays, Essays 4 and 6. See Brian Swimme and Thomas Berry, The Universe Story: From the Primordial Flaring Forth to the Ecozoic Era. San Francisco: Harper San Francisco, 1992. For a brilliant contemporary update of this holism see Jude Currivan, The Cosmic Hologram: In-formation at the Center of Creation. Rochester, VT: Inner Traditions, 2017. 21 For an excellent articulation of this see Emery Reves, The Anatomy of Peace. New York: Harper & Brothers, 1946. 20 205 These facts bear on why John Finnis calls today’s “sovereign nation-state” a “legal fiction,” and why he argues that the human community cannot ever be considered a “complete community” until it is embedded as world law.22 These facts also reveal why philosopher Errol E. Harris argues that the “sovereign nation-state” as it exists today, is conceptually and morally “illegitimate.” Our common good today is clearly global and no sovereign nation can protect that common good without federating as part of a world-unity.23 For neither thinker is the traditional legal entity called a sovereign nation-state any longer legitimate, even if, as Jürgen Habermas declares, there may have been a time when they could be seen as more legitimate than today.24 The Synthesis of these Concepts in the Earth Constitution. The Constitution for the Federation of Earth makes the concept of “unity in diversity” fundamental to its Preamble and the philosophical basis of the Constitution as a whole. The unity in diversity is based on two inseparable primary dimensions: individual human persons and our common humanity. The concept of sovereign nation-state, with autonomy over internal affairs and independence in foreign affairs, we have seen, is a logical monstrosity and legal fantasy that has created endless destruction for hundreds of years and today threatens nuclear holocaust and/or inevitable climate disaster leading to the extinction of the human species.25 Human beings can never solve our most fundamental problems unless we base our planetary organizations on realities, not fantasies. Human persons are a primary reality, and our common humanity (embracing universal dignity and human rights) is the other dimension of that primary reality. These two poles or dimensions are inseparable. As Gewirth expresses this, recognition of the “mutuality entailed in human rights” makes human society into a community premised on “equal dignity” and our reality as “purposive agents.”26 Human beings create groupings and all kinds of “boundaries” among themselves, including all so-called “sovereign nation- states.” These are all strictly secondary realities, none of which are or can be sovereign. In the Earth Constitution, sovereignty belongs to the whole (Article 2). Some human groupings positively contribute to the common good by promoting human rights or environmental protection or an end to war. Other human groupings detract from the common good, violating rights, destroying the environment, or promoting violence and war. Good democratic government protects the first groupings and enforceably prohibits the second. None of these secondary groupings has any sovereign independence. I have shown both here and in my published books that this idea is both a logical absurdity and a legal 22 Finnis, op.cit., Natural Law and Natural Rights, pp. 147-150. Errol E. Harris, Earth Federation Now! Tomorrow is Too Late: Second Edition. Appomattox, VA: Institute for Economic Democracy Press, 2014, pp. 107-08. See also Errol E. Harris, Twenty-First Century Renaissance: From Plato to Neoliberalism to Planetary Democracy. Appomattox, VA: Institute for Economic Democracy Press, 2008, pp. 131-32. 24 Jürgen Habermas, The Postnational Constellation. Max Pensky, Trans. Cambridge: The MIT Press, 2001, p. 60. 25 See my argument that even the UN Sustainable Development Goals cannot save us because they are posed within the illusory UN framework of sovereign nation-states: The Earth Constitution Solution, op.cit., Chapter 6. 26 Gewirth, op.cit., The Community of Rights, pp. 6, 19, & 41. 23 206 fantasy. 27All legitimate groupings will have “some degree of internal autonomy” which is regulated and defined by the unity in diversity of the two primary dimensions of the reality comprising our human situation. This is why those “historical realists” who argue that we must begin with a “loose federation” that takes account of these historical realities and from there work to evolve the federal principle to strengthen the unity and progressively reduce the autonomy of the parts are betraying what needs to be done now for human survival and flourishing. Law, as in the Earth Constitution (Article 10.1), applies to all individual persons, and to try to hold so-called sovereign entities accountable (apart from the individuals who comprise them) is madness. All sanctions or punishments on nation-states as such is immoral, hurting the innocent majority, inhuman collective punishments reminiscent of Nazi ideology. If democracy means that the sole legitimate feature of law serves the well-being of people (and not that of oligarchs, dictators, or dominators), the federal principle must not create any federation of governments that allows some of them not to be democracies, or that exempts their leaders from responsibility to the law. There are many ways to organize authentic democracies and the Constitution respects these ways under Article 14, but to give any governing role to oligarchies (of wealth, birth, gender, race, or power) is destructive of the very principle of law. Under the Earth Constitution, the people of Earth alone are sovereign (Article 2), and the explicit and consistent purpose of all the agencies of the Earth Federation government is the common good that includes protection of individual empowerment and universal rights (specified in Articles 12 and 13). Individuals are also sovereign because they have these rights, and our common humanity is sovereign because it represents the common good of the whole. These are the only legitimate (and inseparable) poles of sovereignty—of our unity in diversity. Thus, everywhere officials in the Earth Federation must take an oath of “service to humanity” (i.e., defending the common good), and thus Article 13.12, for example, specifies that the function of the Earth Federation is to “assure to each child the right to the full realization of his or her potential.” Here lies the proper synthesis of unity in diversity. The Earth Constitution forms a parliamentary system placing ultimate authority in the federated World Parliament. Thus, even its World Executive has limited powers designed to protect against potential subversion of the federated whole. The World Executive has no military, and even the World Police form a separate agency independently responsible to the World Parliament. It has no authority to suspend the Constitution in an emergency and no authority to refuse to spend the world budget as directed by Parliament (Article 6.6). Its leaders can be removed for cause by an act of Parliament. The Constitution also creates a separate agency called the World Ombudsmus that establishes a worldwide public defender 27 Martin, op.cit., Ascent to Freedom. See also Glen T. Marin, One World Renaissance: Holistic Planetary Transformation through a Global Social Contract. Appomattox, VA: Institute for Economic Democracy Press, 2016. *** 207 system to protect people’s rights and to serve as a watchdog on government itself (Article 11). Under the Constitution the world is divided into about 1000 World Electoral and Administrative Districts (WEADS) roughly equal in population whose boundaries conform as much as practicable to current national and regional boundaries (Articles 2, 17, and 19). These in turn are divided into 20 World Regions (groupings of 50 districts) and 10 Magnaregions (groupings of 100 districts). Two of the three houses of the World Parliament are drawn from these districts and regions. The House of Peoples consists of 1000 representatives directly elected from the WEADs. The House of Counselors consists of 10 persons elected from each of the 20 World Regions from nominees made by the students and faculty in each region, with the purpose of getting highly educated and wise people into government who represent the common good of the whole (Article 5.5). Hence, there is a federation of the 20 world regions in the House of Counselors (with 200 representatives) and a federation of 1000 WEADs represented by 1000 delegates in the House of Peoples. The third house is the federation of the world’s nations in the House of Nations. The united federation of the whole combines these three avenues of federating the people of Earth in the World Parliament. The Earth Constitution nowhere defines what is a “nation.” This is intentional since national entities and national boundaries are historically contingent. Nations, like other human groupings, come and go. Many of the world’s nations were created in the 1960s alone and are younger than the UN that is supposed to represent them. Others have disappeared within this same timeframe. Any concept of nation-states as having a somehow superior status as “realities” that define our world is an absurdity and an illusion as we have seen above. The Earth Constitution states that each nation will have 1, 2, or 3 representatives in the House of Nations, depending on population (Article 5.4). Hence, if we set the number of nations today at about 200, there may be about 300 representatives in the House of Nations, with more populous nations having 2 or 3 representatives. We can see from this that the Federation of Earth does not make nations primary in government. It recognizes their historical existence (there is no whole without parts) without falling into the fallacy that we have to build the future on that radically flawed and incoherent past. There will be about 1500 votes in the World Parliament (and only about 300 for the nation- states) for the Earth Federation is primarily a federation of people directly, that is, it is primarily a democracy, not a compromise with the undemocratic notion of false territorial sovereignty. Any good federal constitution will be a living document that does not attempt to freeze history into some final form. Such is the Earth Constitution under Article 18. After the first operative stage of the Earth Federation is reached (Article 17.3), Article 18 requires a complete constitutional review within the first 10 years and every 20 years after that. Changes can be made as necessary for the good of the whole. The Provisional World Parliament (PWP), which has been operating since 1982 under the authority of Article 19 of the Constitution, takes this concept of a “living document” seriously. The PWP has held 15 sessions through December 2021, passing some 72 World Legislative Acts since its inception. 208 Among these, it has recommended changes to the Constitution to improve its democratic coherence and force (which are already substantial), improvements that should only be made after reaching the First Operative Stage. One possibility recognized by the PWP can be called “the world federal principle.” Since the Earth Constitution does not define “nation” but assumes merely that nations are governmental entities, there is no constitutional reason why the number of “nations” in the House of Nations might not be increased substantially. For example, why not make cantons within China, or each pradesh within India, or states within the United States members of the House of Nations? The Constitution does not place any limit on the number of nations that can be represented in the House of Nations. Why not Kurds? Why not Palestinians? Why not Rohingyas or Catalonians? The principle behind the entire Earth Constitution is authentic democracy, so why not increase the federal principle as widely as possible to ensure democratic representation in as fundamentally grassroots fashion as is practicable and possible? Thus, the House of Nations could become (with a suitable amendment under Article 18 enacted after the First Operative Stage of the Federation has commenced) possibly a much larger house (with many more “nations” and with at least 2 representatives from those states, cantons, or pradesh having more than 100,000,000 population as described in Article 5.4). The key insight in these considerations, I believe, is that under a true democratic federation, it will no longer matter very significantly if some territory or group is called a “nation” or not. Democracy is about the dignity of persons (and their freedom to form groups) within the common good of the whole, and the only legitimate whole is the whole of humanity. Today, nations threaten to go to war over the slightest apparent encroachment on their territorial boundaries. But once the unity in diversity of the whole is recognized and institutionalized, such boundaries will be of little concern. They are there for administrative and governing purposes but not for power, arbitrary exclusions, or false autonomy. The notion of “sovereignty” informing the Westphalian system from more than 350 years ago forms a brutal historical illusion distorting our common humanity and our intelligible human project toward one, evolving democratic world civilization. The Earth Constitution creates a correct federated synthesis of our sovereign personhood (that includes human agency and human rights), democracy, and our planetary common good under the overarching principle of unity in diversity. The principles upon which it is based are the only proper principles of political-legal federation. Under the Earth Constitution, “federation” means that the parts recognize that they only have their reality as parts of a whole and therefore unite as a whole that protects the limited autonomy of each of the parts with its indivisible synergy as constituted through enforceable democratic legal authority. This recognition constitutes the paradigm-shift away from the illusory neo-Newtonian atomism to the holism of a truly new age, precisely because it is based on the reality of our human, planetary, and cosmic situation as revealed by all postEinsteinian sciences. As stated in its Preamble: “The principle of unity in diversity is the basis for a new age when war shall be outlawed and peace prevail; when the earth’s total 209 resources shall be equitably used for human welfare; and when basic human rights and responsibilities shall be shared by all without discrimination.” *** 210