Uma visão liberal sobre a "constituição" europeia

Leitura recomendada: A Hard Look at the European Constitution, por William Niskanen and Marian Tupy.

The French and the Dutch will hold referenda on the proposed European Constitution on May 29 and June 1 respectively. Regardless of the outcome, the Constitution will have many hurdles to overcome before coming into force. While the Czech President Vaclav Klaus may be fighting a quixotic battle against the Constitution in a country where the Constitution enjoys considerable public support, the British public is very unlikely to be persuaded to say "yes." Here we look at three reasons such skepticism may be warranted. ###

First, there has been little debate on the Constitution. The vast majority of the European public has not read it and does not know what is in it. That has partly to do with the length of the Constitution (70,000 words) and its impenetrable language. In contrast, the U.S. Constitution is 15 times shorter and easily comprehensible. Not surprisingly, its chief architect, James Madison, believed that, "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."

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Second, the language of the Constitution concerning the division of powers between Brussels and national governments is imprecise. The Constitution enumerates areas where Brussels has "exclusive" competence. But, it also states that "in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level." That sentence suggests that Brussels might exercise some competence outside its exclusive authority if some undefined body decides that the EU could do it better than a member state.

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Third, the definition of individual rights, as enshrined in the Constitution is deeply problematic. The U.S. Bill of Rights, with one exception, is a list of the rights of individuals against the state, not a list of claims by individuals on services to be provided by the state. The one exception is the right to a trial by jury. In contrast, the EU Constitution includes a list of rights to services provided by the state. The list, for example, includes rights to education, a free placement service, paid maternity leave, social security benefits and social services, housing assistance, preventive health care, services of general economic interest, and high levels of environmental and consumer protection.

Such rights -- in effect claims on the state -- represent the most important potential tension in the European Union. On the one hand, the proposed Constitution states that the "free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union ... [and] any discrimination on grounds of nationality shall be prohibited." On the other hand, any citizen of the Union seems to have a claim on a wide range of social services wherever he or she chooses to reside. That will either lead to a massive movement of people to member states with a higher level of social services or the harmonization of these services among the member states.

The only way to resolve the potential tension between the right of free movement and the rights to social services is to allow each member state to restrict access to social services, not on nationality, but on such personal characteristics as the number of years of work in that state and the absence of a felony conviction. Unless member states are allowed to impose such requirements for access to social services, the EU would become a massive harmonized welfare state, relegating the member states to only such roles as maintaining law and order and safeguarding internal security.

The Europeans have every reason to be concerned about a government in Brussels, the powers of which are not clearly defined. Consequently, a demonstrably imperfect Europe of national states, as it is at present, may be a better protection of European liberty than approving the proposed Constitution in the hope for a more perfect European Union.