capitalism

170 Federalism
authority. Decentralization of political power is tolerated in
the interests of administrative effectiveness, rather than
political liberty. Political power is unified, not diffused, and
lower-level governments do not limit the power of the central
authorities.
In recent years, the European Union has come to comprise
a free trade area and an increasingly unified government.
In 2003, the member states submitted a draft
constitution for Europe for approval by the governments of
the member states. Part I, article 9 of the constitution stipulates
three principles that are to govern the powers of the
new central government in relation to the member states:
conferral, subsidiarity, and proportionality.
Part IV of the draft constitution includes a “Protocol on
the Application of the Principles of Subsidiarity and
Proportionality.” Part I, article 9 states that “the Union shall
act within the limits of the competences conferred upon it
by the Member States in the Constitution to attain the
objectives set out in the Constitution. Competences not
conferred upon the Union in the Constitution remain with
the Member States.” This language recalls the American
doctrine of delegated and enumerated powers enshrined in
the 10th Amendment: “The powers not delegated to
the United States by the Constitution, nor prohibited by it
to the states, are reserved to the states respectively, or to the
people.” The 10th Amendment has proved to be at best a
limited constraint on the consolidation of government in the
United States, and there appears no reason to believe that
political events in Europe will take a different course.
The exclusive competences of the new European government
include monetary policy, common commercial
policy, a customs union, and the conservation of marine
biological resources. In time, the limits of the powers of the
Union may be defined by the objectives of the Constitution,
which include peace, the well-being of its peoples, freedom,
security, justice without internal frontiers, a single
market where competition is free and undistorted, sustainable
development of Europe based on balanced economic
growth, a social market economy, environmental protection,
scientific and technological advance, equality between
women and men, solidarity between generations, children’s
rights, economic, social and territorial cohesion, and solidarity
among member states. The conferral principle seems
unlikely to restrict the powers of the central European government
of the future.
The European Constitution also lists many powers
shared with the member states, including virtually all policy
areas. The Union may exercise a shared power when “the
objectives of the intended action cannot be sufficiently
achieved by the Member States.” The member states are free
to object that a proposed action by the central government
violates the principle of subsidiarity. If one-third of the
member states object, the European Commission is constitutionally
required to review its proposed act, after which it
“may decide to maintain, amend or withdraw its proposal.”
Thus, the constituent members possess no effective veto
over the centralization of power in the new European state.
The principle of proportionality states that “the content
and form of Union action shall not exceed what is necessary
to achieve the objectives of the Constitution” (part I,
article 9). This principle seems more a general aspiration for
the new government than an effective limit on its powers.
The new European Constitution seems unlikely to sustain
a form of government that can properly be called a
European confederation. Like many of its member states,
the European Union will have few legal barriers to consolidating
political power and transforming its member states
into efficient administrators of centrally determined policies.
Of course, the member states in question may successfully
resist their subordination to Brussels. If they do, their
success will owe much to realpolitik and little to constitutional
restraints.
The European Constitution explicitly refers to liberty,
together with several other cardinal values. The first objective
of the Union, we are told, is the promotion of peace and
the well-being of its peoples. Indeed, the economic interests
of the member states are a driving force toward union.
Liberty is only one among many values pursued by the new
Europe. Given the absence of effective restraints on the
central government, it seems unlikely that the institutions
of a united Europe will give much weight to individual liberty
in the decades to come, especially if expansion of the
central state serves the economic interests of some member
states in the short term.
Federalism, as it has been understood in the United
States, represents a balancing of objectives, not the least of
which is occasioned by the fear of centralized power and a
strong consolidated government. It has been suggested that
our current concern with multiculturalism might revive this
fear. Multiculturalists insist on protections for minority
cultures and, at least theoretically, on limits on the uses of
political power. Most multiculturalists, however, seem
unlikely to embrace a renewed federalism. Where American
federalism sought decentralized institutions as a way to
protect liberty, multiculturalists aim at other values like
diversity or recognition of a people or culture. Moreover,
the multiculturalist aims at vindicating the cultural rights
of peoples, rather than the right to liberty of individuals.
Multiculturalists, like many contemporary critics of liberalism,
see personal identity as collectively defined, rather
than individually determined. Moreover, their efforts may
contravene republican equality and the rule of law. That
said, a least one political theorist has argued for a “multiculturalism
of fear” aimed at preventing violence, cruelty,
and institutional humiliation against disfavored groups.
This multiculturalism bears a family resemblance to the traditional
motivations of classical liberal theory.
In Europe, the question of consolidation depends on the
willingness and ability of nation-states to constrain the new
central government. In that struggle, the central government