A Treatise on European Government: on a constitution and the transnational

This treatise on constitutional European government is linked to the first on the EU treaties: outlining the foundations for a transnational constitution as the keystone for a 'second Reformation of Europe'. (Long - 13,000 words)

Sam Hufton
7 September 2017

The Altiero Spinelli Building, European Parliament, Brussels, Belgium. Sojka Libor/Press Association. All rights reserved.With Europe’s current order in the spectacular débâcle that it is, a return to basics is in order to rethink the supranational construct, and the underlying idée européenne, from the ground up. For this, consideration must be given to the antecedents of the current European Project, particularly in Europe’s intellectual history, as well as some of the earlier suggestions for a political and, it is assumed, democratic, Europe. Furthermore, the concepts which make up the European idea need to be redefined and reconsidered. What I aim to argue is that Europe does not need a revolution, in the sense of the complete replacement of the very foundations of the European idea, but a reformation [1]. We are not here to destroy Europe, but to reaffirm our belief in it, through challenging the core articles of faith, dismantling the redundant pillars of the construct, and regenerating them into something new. For a truly transnational Europe, there must be a Second Reformation; a real constitution lies at the heart of this. Here is my contribution to DiEM25's Constitutional pillar.

Back to basics: preliminary considerations & suggestions

At its core, the European idea in itself is revolutionary; a revolution against the nation-state and the European state-system, which has characterised the continent since the fall of the Pax Romana. It is the idea that our vision, our terms of reference and our assumptions should not be limited to any national or ethnic boundaries, but should cross them. For much of its history Europe poorly fitted what today is our understanding of the international system; Spanish kings elected as Holy Roman emperors, Dutch Stadtholders being gifted the English throne, royal unions between Saxony, Poland and Lithuania. There have always been many cultures and ethnicities in Europe, but not until the eighteenth century at earliest can we say they matched at all closely the alignment of the European state-system. Even Rome itself, in its republican days, though a single imperium, had a level of cultural variation and diversity that we would recognise in Europe today, both because Rome lacked the administrative capacity and the interest to attempt full-scale homogenisation[2].

The nation-states have changed this, so that within each state, cultural and ethnic homogeneity has come to be expected; the international reigns, where within borders, life is integrated, and between them, there is a void in which negotiation is conducted and relations established. But nothing goes across those borders, considered as high walls separating the isolated national communities. One might think that the existence of the international community repudiates some of these assumptions within nationalism; however, internationalism still rests on the idea of inter, that we are all in our separate national communities, and sometimes agree to cooperate, or discuss things with one another at high-minded summits and conferences. We might visit each other, but being truly integrated at the social level is beyond the conceptual ability of this understanding of the world. The international reigns, where within borders, life is integrated, and between them, there is a void in which negotiation is conducted and relations established. But nothing goes across those borders...

In this way, we see the revolutionary potential of establishing a ‘free and united’ Europe. This was the phrase used by Altiero Spinelli, the Italian former communist and federalist, and Ernesto Rossi, a radical liberal, in the Ventotene Manifesto, written in 1941 when both were imprisoned by Mussolini’s fascist regime. This text is the product of over a century of revolutionary thought on European unification, from Giuseppe Mazzini and Victor Hugo all the way to Karl Kautsky and Pierre-Joseph Proudhon; it is ‘the most powerful vision of continental unity to emerge from the European resistance’[3]. The manifesto is divided into three parts, addressing the crisis of modern European civilisation at the height of what can be described as Europe’s ‘Second Thirty Years’ War’[4], post-war duties on the subject of European Unity, and post-war duties on the subject of social reform. In the second section on European Unity, Spinelli and Rossi preface their agenda with the fact that at the end of the war, there will come a revolutionary moment when the initiative can be seized to rebuild Europe on their radical agenda, which includes wealth redistribution, the abolition and defeat of the old ruling classes and aristocracies, a reconfiguration of the bounds of private property (though not its abolition, communist doctrine was rejected as statist and bureaucratic), and the creation of a European Federation; a state around which will grow “the new, genuine democracy”, free of the reactionary influences and foundations of the old national state-system[5].

The question arises as to why a new oligarchic ruling class would not grow also around this new state, along with all the other trappings of the nation-states, including militarism, cartelism and monopoly, xenophobia towards outsiders, and an introverted and ultimately servile social mentality. However, it is clear there are several reasons. First of all, there is the fact that Spinelli and Rossi’s European Federation is predicated on and deeply informed by the necessary crushing defeat of the old, reactionary ruling elite, which are integrally wedded to the national structures of power: ethnic homogeneity, blood and soil, monopoly of national resources, national symbols of identity and locality, the nexus of aristocratic landownership, capital, and military leadership, all of which controlled and guaranteed nation-state power – even in republican states which had created their own aristocracies.

This not only took centuries to build, in societies that were much more servile and uninformed than that which emerged from Europe’s ashes in 1945, but also relied on actually existing relics from history. This does not exist for Europe as a whole. There has never been European ethnic homogeneity, nor a nobility, nor glory to embody. European history would have to be completely rewritten for that, which national histories were not; they were written selectively[6]. You might say ‘new structures can be created, as in the Soviet Union’. Indeed, there is that possibility; of the creation of a faceless, all-powerful bureaucracy utterly disconnected from Europe. However, Spinelli and Rossi explicitly argued that the society which founds the Europe Federation cannot be ‘servile’. In this term, I understand to mean and characterise national identity, for clear reasons. National identities, though founded on historical relics, were all created, they didn’t exist organically. Within them, though also the ideas of enlightenment and modernity, were those of power and obedience, particularly in states which pre-existed their nations, where the state-elites forged their nations[7]. Even non-state national movements fixated on the attainment of sovereign, state power – take Germany and Italy as clear examples – especially for ethnicities which had a history of state power (Hungary and Poland). The nation must have state-power by right, before any other potential reason. Due to this, obedience, uncritical acceptance, deference to authority and submission were all wrapped up in national society; the nation “brought with it, however, the seeds of capitalist imperialism which our own generation has seen expand to the point of forming totalitarian states and to the unleashing of world wars.” However, while Spinelli and Rossi hence prescribe a society that is not servile, they do not indicate the components of an identity that would facilitate such a society.

The strength of vision in this manifesto is without a doubt leaps and bounds ahead of any of the political calibre that we see in our contemporary Europe, after 60 years of integration. This is due to the intellectual architecture fundamentally: the two other traditions of thought on European unification have collaborated to form the construct that exists today – the conservative tradition, and the technocratic tradition. The idea that Europe’s nation-states should guide Europe collectively, and the idea that the political should be transcended and instead government should consist of technical management. So here is the first wall we knock through: the political ideas found in the Ventotene Manifesto should be the foundation of the Europe we wish to see, and shall act as the foundation of what follows; for at its core, as with DiEM25, is radicalism and democracy.

There are nevertheless two major gaps in the manifesto, and one obstacle; the first gap is, while there is much dedicated to economic and social questions – which are certainly relevant to the wider question of a just and cohesive society – there is little dedicated to constitutional questions. They readily admit that given the uncertain nature of the future, they do not know the exact constitutional forms and can only prescribe that which we already know: representative bodies, the formation of law, independent magistracies and freedom of expression and association. They also argued for secularism; the clear separation of Church and State which the Mussolini regime had reneged on in order to gain the support of the church and his religious countrymen.  One area they are clear on which links constitutional questions with socioeconomic questions is the theory of corporatism. Spinelli and Rossi’s European Federation has a strong democratic element at its very core, “giving the solid stamp of liberty to political life, imbuing it with a strong sense of social solidarity”; this is not compatible in their reckoning with corporatism, experience with which they have from Mussolini’s fascist regime in Italy. They do not believe corporatism can be salvaged for democracy, being a key element of fascism’s “house of cards”; representatives of the various sectors of the economy, even if sincerely representative, are not qualified to handle questions of government policy, for they become organs of the accumulation of power and privilege depending on who has better representation – and hence, access to government. This is very reminiscent of business-lobbying today, where corporations aim to bypass the parliamentary process to gain direct access to government, which they are able to do, and more effectively than other sectors of the economy (especially labour) thanks to their wealth and connections with the political class. Unfortunately, this is the model that technocratic Europe has chosen to base its ‘representative’ government on, which I believe links back to a liberal-individualist conception of democracy[8] and ‘Roman’ strategy of legitimacy[9]. Through corporatist methods, the wants of the people are determined and then technocrats can fashion policies to satisfy those wants; it is a hollow form of democracy, stripped of all normative value or potential. The manifesto tells us the end result: “This would create a kind of feudal anarchy in the economic life of the country, leading to renewed political despotism.” We see it now, different fiefs – banks, industrial manufacturers, pharmaceutical companies etc. - vying for power and influence over the centre, completely disregarding other interests, the common interest and the greater good of the whole, their influence based entirely on who has the most slick and effective representation, rather than equal representation of all.

By contrast, Spinelli and Rossi want a holistic approach to democratic politics, which excludes both corporatism and the sectarian vision of communism as they understood it. Citizens must retain freedom and autonomy; society must retain cohesion. Again, this hints at the form of society that is required for the European Federation, but does not provide any clear instructions.

The second gap is really the most fundamental question that progressive Europeanists have to answer if they want to justify a European state, federal or otherwise. That is, why Europe? The functionalist liberal David Mitrany put this question to Europeanists in his critique of ‘regionalism’ in 1965[10]. In arguing that it would encourage eurocentrism and introversion by undermining the international and reproducing the problems of the national writ large, Mitrany made several assumptions on the nature of identity, internationalism and cosmopolitanism. The manifesto itself addresses the issue to an extent: intergovernmental orders like the League of Nations lack the capacity to actually compel states, which is a problem in Europe in particular because the actions of one state often impact their neighbours. Hence, they wrote, the constitution of each of the single states is a question of vital interest for all the other European nations. The national state-system is effectively anarchy; a Federation would take us from the State of Nature to the State of Peace, guarantee Europe’s peaceful relations with the rest of the world, and transmit its underlying values onto the international stage. Hence, the path to the political unity of the globe would be paved. This is roughly in line chosen by Habermas today, as a stepping stone to a unified humanity[11]. The functional response is the creation of international institutions which dismantle full state-sovereignty, placing it within technocratic limitations. As we know from our own experience, the absence of democratic legitimacy in such a system is profound and unacceptable. In the tradition of Ventotene, Marsili and Milanese wrote a pamphlet in 2011 on forming a democratic union, in which they give several arguments why European democracy should be pursued [12]. The two key arguments are that Europe is on the scale at which transnational democracy can be most effectively pursued, given the imperative of the current situation, and that Europe is large enough to actually influence the shape and character of global capitalism; in other words, to bring back into Europe’s hands power and justice[13]. While there are arguments against both of these, it is on them that I wish to build.

The simplest answer to ‘why Europe?’ is because it’s already here. Like the nation-states before it, which existed before they were democratised, the European Union exists and provides an object to tame and influence, rather than starting from scratch. Yanis Varoufakis made a similar point in a meeting in Belfast in 2017; that since the eighteenth century, the Left believed the state, though a bourgeois construct, should be transformed rather than dismantled. So is it for Europe, now it is here. On the question of why it is here, we learn more. Europe’s stories, though varied, have always been intertwined and interlaced with elements from each other. Europe’s cross-border tradition, its highly-enmeshed economy and society; these things have been attacked by national states, but not destroyed, and they provide the ground-work for the current Union. The Union made the crucial step in 1951 then, in breaching ‘the ramparts of national sovereignty’[14], and undermining the national narrative. This must be built on: why not use Europe as a force for transnational society; why not make the first steps across national borders; and why not use the heritage that Europe has, of borders crossed and boundaries blurred? A place which values diversity in its lived experience like nowhere else in the world. Why not begin at a level which is attainable, in terms which can be understood better, in a territory which has already begun the steps towards transnationalism, namely, those breached ramparts? Why not demonstrate that 'beyond-the-national' can be democratised? In response, many would argue that in creating a European state, you would simply create the national writ large, which betrays the very éthos of Europeanism[15]. Here we turn to Müller and identity.

Müller’s response is to the question of why Europe relies on a level of nuance that nationalism and cosmopolitanism lack, and in so doing connects to the foundations of the European Project. It has been noted that the cold rationality of modernity is very disconcerting for humans – to the point that its height in 1900 preceded its downfall in 1939[16]. Hence, reconciling Eros and Civilisation – emotion and reason; the particular and the universal – should be seen as one of the guiding objectives of the European Project[17]. Müller provides a framework of how to realise this in constitutional patriotism, a theory which argues for loyalty neither to a national culture nor to the worldwide community of human beings, but instead, the process and institutions of democratic constitutional government, which enable an interpretation of and mediation between universal values and particular traditions[18]. This process relies on an identity which rejects the idea of unquestioning pride or homogeneous, unchallenged national narratives about the past, or any single object of identification or historical narrative enforced from above[19]. Rather than replacing the national with the post-national, universal in some way replacing particular, a shifting and fluid concept of identity as the outcome of a common discourse between free and equal citizens creates a process of reflection and self-criticism[20]. It is the particular conditioned by the universal.

In this way, it is also not cosmopolitan universalism; primarily in the ties to specific institutions which enable and are moulded by discursive engagement with universal values, and in rejecting the assumption that all humans enjoy the exact same political-moral relationship with one another[21]. Hence, the process of self-critical and reflective engagement with one another creates a source of identity, as the sharing of a common political struggle creates attachment not only to the principles of that struggle but also the people who took part in the struggle[22]. This connects directly with Spinelli and Rossi’s prefacing of the Federation with a society that is not servile; they criticised the nation for having become a ‘divine entity’, which considers only its own existence, and hence, the identity underpinning such an edifice had to be servile. Müller invites Europe to consider a new identity, which is not as passionate, nor as unquestioning nor possessive as nationality, but nor as cold as rational universalism. Globalisation is not an all-powerful melting pot which obliterates particularity, nor should it be. It has been recognised that postmodern Europe is awash with identities[23]; these can be turned into a binding, united identity only in a discursive and critical process forming a civic identity, which would then characterise the state which it built. Moving from the national - particular - to the global - universal - cannot be made all at once. But it must be shown that it can be done, that national boundaries can be superseded; that an identity that is post-national and post-ethnic can be created on the basis of civic, democratic values and processes; that peoples can live in harmony with different cultures, with different languages, with different understandings of history - and that these can be bridged also, through conscious effort and democratic discourse. A dynamic, evolving identity.

This civic, rather than ethnic, identity goes deeper, connecting directly with the core of democratic government. Currently, democracy is underpinned across much of the west by ‘liberal nationalism’. If constitutional patriotism enables us to think beyond the national, then perhaps the popular foundation of democracy – the dêmos – can be stripped of its nationality – éthnos. The purpose would be to bind it to a political structure that is also post-national, and enable that political structure to exist without the trappings of national identity and ‘nation-statism’ which Mitrany and others fear. The polity would embody the discussion conducted by a critical and reflective dêmos. An additional binding element, alongside the definition of constitutional and institutional specifics (which would evolve) and discussion of the legacy and meaning of the past, would be the seizing of a common télos - destiny - usually attached to éthnos, but appropriated in the name of democratic government. The dêmos united by its collectively determined télos, a process guaranteed by constitutional structures at the heart of which are universal values. What would define the European sphere is the absence of a single éthnos giving legitimacy to its political structures; these would be legitimised instead through the democratic process undertaken by a dêmos which had defined its own existence on the basis of universal values; as Habermas said, peoples emerge only with their constitutions and states[24]. The relation between the dêmos and the European Federation could not be but symbiotic; there would be no ethno-cultural justification for the state. It would embody a common process, a democratic one, rather than a common ethnicity. This has brought us from the simpler why Europe, to the more pressing how Europe.

Democratic reformation

We turn now to the outstanding obstacle: Ventotene was explicitly crafted for the context of a revolutionary moment - specifically, where the authors believed democracy would be ineffective. It is clear that, while Europe may be in crisis, this has not reached a revolutionary moment, and nor should we wish it to. Democratic methods, and related, constitutional structures, are that which we work with, returning to the first gap in the manifesto. As Rousseau said, commonly crafted institutions and laws give character to a people – or peoples united by a single politics.  It is important to note that government is not simply the institutions which shape it, but also the constitutional and political culture which informs it. The latter is fundamentally a question of values; these we have defined to an extent, in speaking of universal values. Both Zygmunt Bauman and Wolfgang Münchau have articulated specific universal values which should be at the core of Europe’s raison d’être.

In 2004, Bauman wrote that justice, rationality, democracy, liberty and the autonomy they produce are all the key values of Europe, and are the source of Europe’s development into the civilisation it is today[25]. Justice as the protection of the common good and hence underlying social solidarity; rationality as the justification of actions through reason; democracy as the ability to settle shared human affairs; liberty as the basis of autonomous citizens and their responsibility for the good of society; these together form an autonomous society, the society capable of conducting its own affairs. In 2016, Münchau gave a shorter list as the values of the French Revolution: liberté, égalité, fraternité[26]. To liberty, he linked openness and tolerance, to equality, equal opportunity, and to fraternity, the defence of the public good, which could include wealth redistribution and social welfare. In other words, the fundamental tenets of post-war Social Democracy, or as Habermas put it, the Sozialer Rechtsstaat, which he saw as the basis of constitutional patriotism – a state which guarantees the rights and freedoms required for it, and which ensured all citizens could equally participate in the democratic process through wealth redistribution[27].

In effect, these two elements are those which Spinelli and Rossi advocated should be at the basis of the European Federation, that is, a political life imbued with liberty and solidarity, each occupying a symbiotic relationship with the other, in the sense that the absence of one nullifies the other. Where the post-war settlement failed to meet the manifesto prescriptions however was in the national element; Social Democracy in the above sense, born and grown in national chains, would fail in the revolutionary agenda Ventotene set for it. The guarantee of a Europe free of the reactionary classes which ruled prior to the Second World War, including the capitalist classes which brought about the neoliberal counter-revolution from the 1970s onwards, was absent from the post-war settlement; it was constructed by them on the contrary. Hence, the prescription by Bauman for a social democratic European Union, and the corresponding certainty that Europe’s political classes will not establish this; changing this then is the fundamental priority of the Second Reformation.

It is here that the democratic reformation of the Union is so fundamental; not only as a challenge against the current illegitimacy and constraints of the international order, but also as a challenge to the current mode of globalisation via markets. This is presented by some as the spread of universal values across the world, but is in fact the creation of a global over-class completely free of the restraints of government and the concepts of public, common good. The democratic deficit exists not only in Europe, but is widening everywhere, with governments engaging in localised Standortkonkurrenz while the super-rich pursue their own priorities completely divergent from the average citizenry[28]; precisely the threat of corporatist government which Ventotene warned against. This reinforces the imperative of Marsili and Milanese’s argument about Europe challenging the current path of global capitalism. This is something that can only be done through democratisation of the Union, and must be done in the name of confronting the super-rich at their until-now distant vantage point from where they have exercised a monopoly of power, and ending this in favour of democratic government.

From this discussion, several elements of the Constitution of the European Federation become clear, as regards what democrats across Europe intend it to be. The first key is diversity. This is a concept which must be treated as a value like liberty, justice and solidarity, for it is at the heart of Europe’s reality. Diversity, as has been made clear, is a natural consequence of splitting dêmos from éthnos, and hence creating a purely civic basis for democratic politics. However, in reconciling Eros and Civilisation, we cannot jettison Eros, that is, emotion, culture and passion. Instead, nations must remain a part of Europe; there can be no transnationalism without nations themselves; borders are not truly crossed if they are irrelevant or non-existent. But there is also moral value in diversity, which has infused the life of this continent with a sense of dynamism and élan that is unique to Europe. Diversity is not just a matter of cultural norms, but cultural expression – expression which produces a raft of distinct and conflicting opinions, ideas, interpretations and insights into life. This crescendo of expression is not consensual; however, in the realm of words, sounds and images, it is peaceful, contained conflict. Difference which produces even greater and more divergent expression and thought on the human condition; Europe is the “birthplace of a transgressive civilisation”, ‘allergic’ to borders and limits[29]. Europe’s differences intermingle, but they do not merge, and hence, it is perfect for the transnational crossing of mental, legal and physical borders. The conflict of this renegade mode of existence nevertheless comes together in the shifting melody of a continent in the process of permanent self-improvement; such a legacy corresponds well with the constitutionally patriotic society, which encourages itself to constantly refine and improve upon its realisation of universal values and understanding of its history, in a ‘struggle for perfection’[30]. This evolution requires conflict, in the sense of ‘this can be done differently, and better’, and conflict requires diversity. Such a heritage has to be protected, and not threatened by the rational civic identity held commonly across the federation. It is what Weiler has called a ‘differentity’, a community of others.

This leads to the second key; sovereignty. There are many who have argued along the lines I have, in favour of a Europe reconciling eros and civilisation and founding a dêmos which is disconnected from éthnos and culture. However, they usually go on to argue that such a ‘de-centred’ society would be ‘post-sovereign’ ‘post-decision’ or ‘post-state’[31]. Here, I fundamentally disagree. Firstly, to take Weiler’s argument head-on, in his description of the idea of differentity, he uses the example of a person as not having a real ‘identity’, in that who they are is made up of multiple, competing influences[32]. There is nothing identical about it. However, the argument breaks down when we reach the subject of decision-making; a person, though not uniform, is capable of making single decisions. One can evaluate their competing influences, and reconcile them in taking a course of action. Though I would warn against treating a political community as an individual, here I believe it makes sense to say that differentity within the body politic should not preclude an ability to take sovereign decisions as a single community; this is indeed the purpose of democracy. And this is the crux of the argument: for democracy to be real, for its meanings – autonomous, peaceful and stable self-government, influenced by the equally voices of its citizens (isegoría) – not to be rendered hollow, there must be an authority which has sovereignty, and that authority must be the people (in our case peoples). They, through representatives and other means, must be able to install and dismiss governments, and through them, pass whatever legislation they please within the polity and within the constraints determined by their own constitution and values. If they are unable to do this, they are not sovereign, and they are not in a democracy; what has occurred in Europe, and I contend, what the ‘post-sovereign’ conception expects Europeans to accept, is that sovereignty has been taken and placed into a void, replaced by technocrats and councils of national ministers whose only authority has been granted by treaty and is hence illegitimate[33].

By contrast, a European democracy would require sovereignty to be reconstituted beyond the nation[34], at the level of Europe, and borne by a single dêmos, united by its common politics (institutions, values, discourse), which is made up of multiple peoples (éthnoi). The fundamental point in this is that there must be an answer to the question of ‘who decides’[35], and the answer in Europe must be the peoples, operating on a plane where they are not divided but acting together. This does not mean, nor does it need, unity in all matters – only in their common political action, in defining (and redefining) their common télos, they must be able to act together and direct their common institutions; in all other matters, diversity takes priority. Hence, we are talking about transcending boundaries, not policing them in a regulated ‘Community’, as some have argued[36]; citizens must be able to freely cross them, and operate above them in matters of common politics, while recognising their existence. Some have been very clear: the course we should adopt is to freeze the European construct where it is, as a symbol of postmodern, post-sovereign liberalism – a so-called ‘Liberal Order’[37]. The assumptions are that people pursuing different ends cannot be reconciled, and likewise, nations which are different cannot act together – only in some areas can and must they be forced within frameworks established internationally. This is the quintessentially Liberal Nationalist approach – privileging of collective, national identity on the world-stage over the identity of individuals as free citizens, and of ‘national’ interests over reconciled transnational ones. The fact is, such an order would mark the abandoning of all liberal, constitutional precepts of democracy in the age of globalisation; of individuality, of autonomy, of constitutionally legitimised law, of the very belief that democracy can reconcile diverging interests in areas of crucial mutual significance. In short, we cannot accept this view, for that precludes legitimate government from the globalised world, and means accepting unlawful despotism, controlled by the aforementioned over-class with no loyalty to any nation-state or democratic principles. Likewise, we reject the idea that constitutions can only be bestowed octroyé by existing power; legitimate authority can be founded by peoples alone.

Through the previous paragraphs I believe I have constructed a distinct interpretation of supranationalism, which might be better defined as Transnationalism, as opposed to Community Internationalism or Liberal Order, pure intergovernmentalism, or a nationalist-statist Europe. My interpretation recognises that all these nationalisms have a tendency towards aggression, xenophobia and absence of solidarity across borders, and offers a method of how to counter this. Transnationalism is certainly constructed in opposition to the supranational technocracy that the Union is today. The fact is, despite Mitrany’s critique of ‘regionalism’, the Union of today represents the exact functional technocracy that he argued should replace the inter-state realpolitik of the inter-war and pre-1914 eras.

There are, I think, clearly discernible reasons why Mitrany and others like him were opposed to a restoration of nation-state-based international relations; in fact, they may even be similar to the ideas in the Ventotene Manifesto, that such a system is in fact anarchic. Their opposition to democracy[38] is also understandable, if misplaced.

Their belief in bureaucracy however, is sorely problematic. Officials that rule – technocrats – are not performing functions above political decisions, but are governing according to certain assumptions and beliefs. Weber’s ‘ideal type’ of bureaucratic power sheds light on the threat of bureaucracy to autonomous government and self-rule; its hierarchical, oligarchic power structure, demands for obedience, deference to authority and impenetrability[39]. Technocrats overruling decisions of democratic governments is just as illegitimate and despotic as the global over-class which can come to power under the Liberal Order. In fact, it is the other side of the coin, and a necessary element of a corporatist undermining of democracy. The interests of big capital can simply sidestep democratic politicians who require a popular mandate, and go straight to the bureaucrats who implement the rules[40]. With the inequality of representation inherent in corporatism, the bureaucrats will accept capital’s word as representing the only interests which matter, and will have no qualms about enforcing unpopular decisions. This was the objective of Hayek’s interstate federation; place key elements of public life beyond the reach of citizens and submit them to the homogenising and dehumanising influence of the market unbound[41], its laws decided and maintained by technicians at the service of big capital, its participants stripped of all autonomy or self-determination, states reduced to self-destructive Standortkonkurrenz in the hopes of gaining the favour of the markets and capital.

This kind of functionalism has no place for a politics of values – or politics at all. This is most importantly a lie, as technocracy is not apolitical, but despotic, and authoritarian. Technocracy enables there to be an absence of responsibility; on the part of the technocrats, who, though making decisions take no responsibility for the moral or political consequences of their actions; and on the part of the politicians, who take no responsibility for the authority of collective government and political discourse of Europe.

It is the technocrats’ role to enforce the current architecture; but if the architecture is faulty, it is politicians who must make the difference – and none want or are able to assume the role of deciding and leading in the world of technocracy[42]. The whole of the Union is united into a single, monolithic bureaucratic and legal structure, towering above the national level. However, there is no political structure placed on top of that. Normally the technical level is in service to the political level; in Europe, this is not the case. They are completely separate[43]. In this way, with technical power concentrated and political power diluted, politics is in service to technocracy. This is how democracy is made absent from Europe.

Bureaucrats do not wield their power openly, because they cannot - it is power which is not theirs but which they have been loaned by people who do possess mandates. Therefore, they must whisper in the ears of ministers and statesmen, hoping to convince them secretly and then mercilessly execute their supposed orders as if they had no choice. The wielding of such power - pretending to have none beyond following orders while in secret influencing those with authority - is despotic. Crucially, it has seeped into every nook and cranny of the European construct: "The operative maxim of the EU has become Brecht's dictum: in case of setback, the government should dissolve the people and elect a new one."[44] It should become clear then, that the imperative to democratise Europe is not just a technical illegitimacy – a trick of constitutional law – but an urgent priority to remove the ‘cartel of elites’[45] and their influence over European society, both for the sake of those in Europe, and as a challenge to this mode of rule across the globe. Transnationalism is an alternative to this mode of rule, which has the democratic imperative placed at its very heart, hence making it the keystone of this second Reformation of Europe. Transnationalism is an alternative to this mode of rule, which has the democratic imperative placed at its very heart, hence making it the keystone of this second Reformation of Europe.

The civic-state; beyond the nation-state

We have our alternative articles of faith to inform the Union’s reformation. However we have yet to consider concrete pillars to define its shape. It is to this that I now turn.

There are two previous attempts to give tangible form to a political Europe: the Statute of the European Community, 1953; and the Draft Treaty establishing the European Union, in 1984. The former was drafted by an ad-hoc assembly of national parliamentarians from the six founding member-states, including Paul-Henri Spaak and Heinrich von Brentano; the latter was drafted by a committee of federalists led by Altiero Spinelli in the first European Parliament, elected in 1979.

The Statute of the European Community was Europe’s first attempt at political unification, and yet has been described as one of the most elegant constitutional documents to have been proposed in history, and one that should be a template for future European constitutions[46]. The federalist Guy Verhofstadt laments Europe’s failure to have its ‘Philadelphia moment’, when we could have carried the baton of political union over the finishing line and provided answers to the debates we are having in the current Union[47]. Monnet did not believe Europe was ready to make this step in 1954, when the Statute was rejected by the French Assemblée Nationale, however, Verhofstadt sees it as Europe’s greatest mistake of the post-war era. Unlike the 2004 constitutional treaty, the Statute was not overwhelmed by legal jargon and was hence compact. Furthermore, its aim was clear: to found a European Federation and a new, supranational sovereignty, underpinned by democratic institutions - recognising the legitimising authority and power of a representative parliament, which Verhofstadt points out, is not recognised in the current Union[48]. It provides for the representation of citizens and collective nations; it recognises that the Statute, rather than member-states arbitrarily, confer competences; it ties the supranational executive’s authority directly to the parliament – which has full legislative power - and separates the executive’s members from any corporate entanglements; it restricts the intergovernmental Council of Ministers to a secondary, harmonising role; it establishes a fledgling federal judicial system; it restricts corporatism to a purely advisory role; it prevents an increase in bureaucracy by relying on the established principle of indirect administration; it provides it with spending power under parliamentary control, necessary for a government to enact its agenda; and it establishes an enumeration of powers[49]. There is an echo of the Swiss system in this document, along with the German one, courtesy of the influence of von Brentano who was involved in the drafting of the German Grundgesetz[50].

Turning to Spinelli’s draft treaty, it further introduces the ideas of transnational solidarity and respect for diversity, as well as establishing the principle of subsidiarity in European government; it establishes European citizenship; it introduces territorial boundaries to the Union; it explicitly states the preservation of peace and peaceful, stable coexistence between humans as a core objective of the Union; it establishes a process of judicial review for the Union; it provides a means of Union-coercion of member-states for breach of the treaty; and it provides a more detailed enumeration of powers which has some protections[51].

It is clear the drafters, including perhaps Spinelli, had been influenced by the Union’s established practices, developed over the course of 30 years, and hence is less federalist and radical than the first. Both documents establish the constitutional idea that no document but this one can be considered as containing the governing norms and procedures of the Union. These are all aspects which relate to the effective functioning of a transnational European democracy.

The Statute combined with the Spinelli Treaty offers the basis of what I believe should be the institutional shape of the European government, though there are of course sections we can dispute and alter, and we must bear in mind that no constitution is – or can be - perfect. A number of influences can be determined as to the nature of the construct the drafters of these treaties were trying to build. To these I wish to add further elements based on three further political theories, blending with the already-present influences and together making the European construct more distinct, and ensuring that it serves the transnationalist ends defined above. These theories are: the Kantian pacific federation; republican democracy; and federalism[52]; together they will be underpinned by the idea of a civic dêmos with universal values, facilitating a constitutionally patriotic identity which will hold the edifice together. The fundamental precept is that Europe should have a constitution which repeals all of the treaties and replaces them with a document, the legitimate authority of which originates from the European peoples. It is they, not the nation-states, who are the pouvoir constituant of the Union. With this foundation laid, we can turn to the first theory, establishing the Preliminary and Definitive Articles of Perpetual Peace in the European pacific federation. The fundamental precept is that Europe should have a constitution which repeals all of the treaties and replaces them with a document, the legitimate authority of which originates from the European peoples. It is they, not the nation-states, who are the pouvoir constituant of the Union. 

In Perpetual Peace: A Philosophical Sketch, Kant gives a series of ‘Articles of Perpetual Peace’, which would end the ‘State of Nature’ between states (which he called the State of War), and bring about the ‘State of Peace’. It is the definitive articles which demand our attention – they are: “The civil constitution of each state shall be republican”; “The law of nations shall be founded on a federation of free states” (the pacific federation); and “The rights of men, as citizens of the world, shall be limited to the conditions of universal hospitality[53]. In the term 'republican', Kant meant that firstly all members of society were recognised as free and equal citizens subject to the same law, that citizens were represented in a government which acted by their consent, and that executive and legislative power were severed from one another in government. The first and second are recognisable today and are part of our modern understanding of democracy. The third Kant believes is in conflict with democracy, as his idea of severed executive and legislative power is that the two must be exercised by different classes of society; citizens may have legislative power but executive power should be exercised by a monarch or aristocracy (which he favoured). A democratic form of sovereignty (‘forma imperii’) is in conflict with a republican form of government (‘forma regiminis’); it is instead a despotic form of government. On the one hand, Kant argues significantly that a small, un-bureaucratic executive must be combined with a ‘real’ representation of the people for republicanism to be fulfilled, and this makes sense to me as well (note, small executive should not be confused with the idea of the minimalist state of Hayek’s imagining; the state should not be passive, for it is a tool the people use to exercise their sovereignty and ensure just, effective government.

Nevertheless, the state must not have the means to administrate every aspect of its citizens’ lives. However, I believe that our understanding of democracy and the separation of powers[54] has developed from 1795, so that our idea of ‘the people’ and their sovereignty can itself be divided – the people dividing their will into executive and legislative (as well as judicial) branches of government. ‘The people’ cannot be considered as a despot if power is effectively separated and limited, and if free citizens are considered as so – distinct individuals rather than a homogeneous mass. Citizens can and should place controls on their own sovereignty, and hence act peacefully and constitutionally, in cooperation with one another. Federalism helps to further develop the idea of a people that are not permanently united but are on several occasions willingly divided, through the concept of the clear enumeration of powers within a constitutional settlement, guaranteed by the courts. Habermas has made the further point that only in the writing of a constitution do the people exercise their will in an ‘undivided way’[55]. This relates directly to the role of diversity and the continued existence of European nations in the European Federation, layered on top of which is Kant’s Second Definitive Article: the federation should be composed of these free, autonomous republican states.

Kant directly relates his idea of the state and sovereignty to a people or nation, and hence argues that the federation itself cannot be a sovereign ‘state of states’. It must nonetheless be capable of taming the sovereignty of nation-states and prevent them from going to war needlessly, acting as humans did in the state of nature.

There are two principles at the heart of this design then: that we cannot be frivolous in our treatment of war, as Clausewitz was in suggesting war was a continuation of politics[56]; and that the rights and liberty of free people must be protected, and cannot not be forced into a single state or empire. Instead a federation of states should bind them in peace, taming their actions in the state of nature without ending their existence. In the context of the European Federation, the autonomy of the European peoples must be recognised as protected; autonomy evidenced by the existence of separate nation-states prior to the formation of the Federation. The right to existence of Europe’s peoples as nations cannot be revoked, having been established in the creation of nation-states as vehicles not only for diversity, but also constitutional democracy and civic emancipation[57]. The Federation must be the reconciliation of the drive for self-government, grounded in European history and the will to diversity, with the desire for peace and contained conflict, and our common will to be able to define a common destiny. The Federation must be the reconciliation of the drive for self-government, grounded in European history and the will to diversity, with the desire for peace and contained conflict, and our common will to be able to define a common destiny..The constitutional mechanics for this process, as a three-stage process, has been suggested by Habermas, whereby “the existence of democratically constituted nation-states is already presupposed”, operating alongside the citizens as pouvoir constituant and constitutional state as pouvoir constitué [58]. This should be solidified in the establishment of republican states, as understood above, which will be autonomous and guarantee the continued diversity of the European continent.

There are several manifestations of this line of thought: first, that the fundamental precept of international law, that states are free and equal, must be included within the constitutional structure of the Federation, declaring the republics as manifestations of autonomous, distinct peoples, and hence must be represented equally; second, that the Federation will be constitutionally mandated to protect the diversity of its peoples in the form of peaceful conflict, enriching the diversity of opinion and expression necessary to democracy; third, the right of a republic to secede from the Federation will be guaranteed, as that of an autonomous, free people; finally, there shall be a clear and strict enumeration of powers negotiated in the constitution-writing process and guaranteed by that constitution and the courts, with the aim in mind of preserving as much of Europe’s diversity as possible, without prejudice to the maintenance of peace within the Federation. Thus, the republics shall be autonomous except where their interests or actions would clash, at which point the federation’s law would prevail, and interests would be reconciled and brought into harmony. This is the basis of subsidiarity I believe; where working apart would lead to conflict or self-harmful results – where compromise is necessary to maintain peace and harmony.

Protection of such an order would require a sophisticated judicial doctrine which would guard the enumeration of powers laid out in the constitutional settlement. The alteration of that settlement would require constitutional amendment approved by peoples and citizens; hence the so-called Kompetenz-Kompetenz would be shared by the republics and the Federation in effect. An effect I believe important here would be the idea that socially destructive policies could not be implemented at the federal level by some nations on others, as this would provoke dislocation and potentially violent social conflict (as opposed to constructive peaceful conflict). Implementation of such policies, which can be described broadly as neoliberalism, will still be possible at the nation-state level. A final role for this judicial doctrine would be defining the boundaries of peaceful conflict, where the line is crossed from constructive to destructive and provocative; hence, a definition of hate-speech and how to prosecute it would be required, drawing on European traditions of this concept, and lessons from Europe’s collective history. At the foundation of all of this is that the European peoples have a right to self-determination and autonomy, but not independence; the idea that Europe’s peoples are independent is not only untrue but a counter-productive denial of history, and un-European.

The creation and protection of this order, including legitimising far-reaching judicial action, requires democratic authority. Such an order is only compatible with democracy if the federation has the sovereign authority to act as it will, granted and directed by a dêmos of free and equal citizens capable of self-government; that can act on a collective plane, through collective institutions, in an attempt to seize control of its collective fate. Democracy legitimises the state-sovereignty required for the above order to act effectively – as autonomous republics where possible and collectively as a federal state where necessary. It will legitimise the critical breach in the ramparts of national sovereignty, achieved by Monnet and Hallstein’s technocratic Europe, but required by both Kant and Spinelli’s idea of the Federation. The federation of states will be constituted by Europe’s nations acting as an undivided dêmos and, on policy enumerated to the federal level in matters which have been determined to effect all within the federal state, that dêmos shall act together.

On all other matters, they shall act separately. Whether you are a citizen of the Union does not depend on whether you are also a national of a national republic – nationality is for the republics to decide. You acquire citizenship as a member of the united European dêmos, not as a member of an ethnic community. You are recognised in a constitutionally patriotic society nevertheless; an idea which necessarily underpins a political community like this. It removes nations from the foreground of political life, so that they lose the adversarial and violently conflicting nature which the nationalist-statist order had inherent within it. A last note on government form: the result of this complex balance between national autonomy and collective democratic sovereignty is that presidential government is unfit for the European Federation, and that parliamentary representation must directly control executive power. The power of a president with a popular mandate is not necessary, functional or legitimate in the European context. A president is in effect an elected monarch, which leads to bureaucratic centralisation, contrary to peace and harmony across national boundaries. A President is a chief, which will cause confrontation; parliaments are discursive enabling compromise & reconciliation. No single person can embody and represent all of the European peoples. Parliament can instead fulfil this function legitimately. A ceremonial president should thus be chosen by the republics (peoples in diversity), with a cabinet government accountable to Europe’s citizens (peoples in unity) through parliament, and elected by it.

With ‘republic’ as the basis of the Federation, Europe must have a thorough understanding of the theory of republican democracy, as the basis of a European federal democracy. At the core of republican democracy are two ideas which define it from the more individualist versions of democracy: ‘Roman Liberty’, understood as freedom from tyranny and domination; and the citizens of a political community uniting to seize control of their common fate, in order to define it themselves[59]. The former principle can be understood as Kant’s perpetual peace and freedom from violent conflict and those who would perpetuate it – as well as freedom from the realpolitik concept of ‘the strong do what they can and the weak suffer what they must’, the inequality of states, and all the injustices of the ‘State of Nature’. The latter can be understood in terms of the civically-defined dêmos, the idea of transnational citizenship and a political community which enables diversity and freedom, but also demands common responsibility and solidarity between citizens; this is the symbiotic relationship between rights and duties. The former are hollow and value-less without the latter, for if we are to guarantee the former through our institutions and sovereignty, we must fulfil the latter to ensure a proper commitment to those institutions and society.

Related to these principles must be the idea of universal, humanist values, which define the European dêmos: we have begun to articulate these values above, and are bound by the idea that free and equal citizens which recognise each other as such have a right to govern themselves to the furthest extent possible. Naturally, all humans can hold these values, but they are defined as European because they come distinctly from the European experience; it is these values alone which define the European identity – that which binds them – more than anything else[60]. It is from this idea that Verhofstadt and Varoufakis have both argued that Europeans in truth have more in common than that which divides them, and hence are able to pursue a commonly defined destiny, or télos, as a united dêmos[61]; values are at the heart of identity. The natural course is to write these values into the Constitution as the definition of European identity, with the permanent demotion of nationally-defined identity to a passive, background role, rather than the primary justification for common government – the triumph of the ideas of the Enlightenment[62]. As the birthplace of these values, Europe must be the first to put them at the heart of its own self-understanding. Alongside these should be diversity, for the reasons articulated above, and for the fact that these values have enabled Europe’s appreciation of diversity, and desire to fight against homogenising, centralising influences. This is also the source, I suspect, of many Europeans’ resistance to today’s ‘Europe of Offices’[63]. It is the diversity born of these values which has set Europe on its continuous, unfinished, and hopefully unfinishable adventure, in search of utopia[64]; that is, a journey that is unfinishable yet must nonetheless be pursued.

In terms of government itself, these values combined with republican-democratic principles leave us with some clear precepts of government: self-government and decentralisation, rather than centralised bureaucratic control, linking directly with the above-stated autonomy of the nation-republics; the strict protection of the enumeration of powers established in the constitutional settlement; and the representation of both citizens and national peoples at the federal level.

On the other hand, the other key is the sovereignty of the European peoples together as a single dêmos. The dêmos is the source of democratic action; it staffs the institutions of government and directs their actions through free discourse, voting and civil-society action among other means. Despite the attempt of nationalism to bind destiny (télos) with the nation (éthnos), in fact, destiny in a democracy is directly linked to the dêmos, as the entity which defines and controls its fate as free citizens through their government. Dêmos, then, is defined by a common political discourse and institutions, not the ethno-cultural definitions of nation. For these institutions and discourse to mean something, they must have a state and sovereign power. If citizenship can be decoupled from nationality, and dêmos (democracy) from éthnos, then why can the state, and its sovereignty, not be split from the nation? Citizenship, democracy and state-sovereignty are three elements which are eternally bound for any of them to have meaning or legitimacy; democracy must have a dêmos formed of equal citizens. However, those citizens’ rights and duties must be guaranteed by a state; they must be determined democratically and articulated in a constitution, legitimately granting the power of the state, which the citizens are equally subject to[65]. That power enables them to engage in the democratic process of determining their fate. The state is a tool of democracy; it is an illegitimate authority without democracy, and democracy is hollow and impotent without the state. This does not mean loyalty to the state, or any static conception of the constitution; this uncritical, submissive attitude to the state is a product of nationalism, and is eschewed by constitutional patriotism, which demands civil disobedience where necessary, in the name of the universal values we have named as those common to us, and facilitates stability where the state serves its purpose. Republican democracy in the Federation demands a critical attitude to authority and the use of power.

Such an understanding enables a more nuanced approach to the use of power justified by majority-support. Republican liberty is the idea of freedom from tyranny[66]; this, among others, is a value which guides the use of state power by the dêmos. Hence, action by the dêmos cannot be tyrannical, justified by majority-support alone, but instead must be informed by these values for it to be legitimate and democratic. Democracy understood in republican terms is at the service to higher values - isegoría, liberty, solidarity, justice and diversity - defined and redefined collectively through discourse within the enlightened civic dêmos. At the heart of this interpretation is the need of society to reconcile ‘the unison’ with ‘the polyphonic’; that is, plurality with the need for common courses of action. That means the plurality of voices is respected - through the values of isegoría and liberty. Republican democracy demands both freedom from tyranny and the seizure of fate; autonomy on some issues, collectively-exercised sovereignty in others. Crucially, this places a heavy emphasis on the organisation of democratic politics. The current European Union fails miserably in this regard; the void of citizen politics has allowed economic interests to be privileged, exacerbated by the roots of the current institutions as a cartel-administration - hence the cast of the Competition Policy, trade relations, capital markets, the Common Agricultural Policy and emphasis in the eurozone on deregulation and austerity. These emphases are the hallmarks of institutions entirely orientated towards big capital, without any other points within its frame of reference; there are no other objectives and ideals within the agenda of the Brussels institutions. Corporatism intensifies the technocratic structure of the Union institutions: it nullifies the harmonising and pacifying effects of democracy, leading to incoherence, allowing big capital to exercise huge amounts of power over government, and the working classes to be appeased but subordinated. It is thus not surprising that neoliberalism has easily been adopted as the working-ideology of the institutions, as well as the idea that citizens are not still divided by class. This means the impact of the omnipresence of class within the body politic is neglected. By contrast, Spinelli and Rossi invoked us to build a society where we can act as equal citizens; where wealth and power disparities were not so great, where liberty was combined with solidarity, where politics was inclusive, democratic and respectful of the minority, where citizen autonomy and freedom were valued and meaningful across society’s classes. This is the project of the federation. Social justice and solidarity are instead at its core.

The technocracy and corporatism within institutional politics is one side of a coin, the other being the total failure of political mobilisation and organisation of citizens at the European level, symbolised by the European Parliament as a ‘Merovingian legislature’[67]. Republican democracy does not recognise such a distorted attitude towards politics, where low politics is run by technicians and high politics by diplomats; it demands that we choose our fate rather than leaving it to economic forces, influenced as they are by corporations. Social justice and solidarity are instead at its core[68]. Without these, the sense of cohesion, a common citizenship and political project degenerates, and alternative sources of identity predominate – nationalism. Republican social solidarity combined with constitutional patriotism is then key for a cohesive identity which does not need nationalism to effectively exist. On this understanding, socially destructive economic policies would in any case struggle to be implemented federally, because that would be counter to the general éthos of the Federation. Neoliberalism founders on the bases of civic democracy and stability; it would ignore the imperative of republican self-representation, government and autonomy.

These ideas relate to the last definitive article articulated by Kant, that citizens should receive hospitality wherever they go in ‘foreign territory’, which we should understand as territory not belonging to their nation. Already, freedom of movement and the civic rights linked with European Citizenship currently go some way to fulfilling this Article, extending the idea of being a citizen beyond the nation, if not to the whole world. The above articulated theory of republican democracy empowering a civic-state, with a transnational dêmos united by constitutional patriotism enables the idea of ‘citizens of the world’, which are recognised in all states, regardless of their nationality. It also enables a strong, decentralised democracy, privileging neither the centre nor the periphery, which would legitimise a state with the potential to realise both the pacific and European (understood as the universal values above) Federation. It is a more radical attempt at achieving Kant’s vision of bringing about an international ‘State of Peace’ than the tinkering proposed by Weiler, Garton Ash and others that want simply to put nation-states in chains by strengthening international power. These ideas aim to transform European life, the meaning of citizenship, the state, democracy and the dêmos.

That is a core purpose of the civic-state, to realise the Kantian principles of perpetual peace. To take democracy and make it transnational, spreading across borders; to decouple identity from static images and ethno-cultural blood-based definitions; to create a truly post-national Europe in Hallstein’s words, as an example for the world. Europe gave birth to these ideas and must be the first to truly embrace them. To realise the dissenting, transgressive, renegade nature of Europe which does not accept stasis, and challenges accepted wisdom in all spheres.

The idea of ‘post-national’, or more precisely, post-nationalism, is critical to constitutional patriotism as a form of identity[69], which enables us to elaborate on the issue of borders more precisely. In fact, neither Constitutional Patriotism, encouraging the opening of constitutional cultures and the gradual mixing of beliefs through critical self-reflection of them, nor Constitutional Synthesis, Fossum & Menéndez’s theory accounting for the constitutional development of the current Union, integrating several national influences into a single body of law whilst simultaneously constructing a diverse patchwork of institutions, account for political demarcation.

Why determine ‘Europe’s’ borders anywhere in particular, especially when we have established ‘Europe’s’ identity as defined by its universal values? Here, I believe we must come back to autonomy. Firstly, the civic dêmos forms a state, as an expression of the democratic process, through its constitution, institutions, body of law, political discourse and interpretation of values; these alone cannot demarcate the boundaries of a state, hence there is no territorial element to the civic dêmos, nothing which defines it precisely – it is the subject of an inclusive and ongoing process. Instead, the territorial element of éthnos is required to give geographic expression to the civic-state.

The autonomy of the sub-continent’s nations must be recognised in their construction of constitutional democratic governments. Only they can have the authority to accede to the European Federation, adopt the principles of, and integrate themselves into the common dêmos. No one has the right to force them. The continued presence of the éthnoi within the Federation determines its boundaries; it itself is a purely civic entity, guided together by a single dêmos. It is given life, shape, direction and boundaries by the ethnic nations which accede to it, and in so doing, accept the opening of their borders, a commonly defined télos, a common discussion of the past (which grows with each éthnos which accedes), and the fundamental idea that these things can and should be shared with ‘others’, in a diversity which strengthens us all. The civic-state thus acts as a vessel – all the components of which make it universal - which needs to be filled by the particular national interpretations and historical experiences to turn it into something which has substance in the real world – to make the universal tangible.

An éthnos which does not want to join the process the civic-state embodies, will not. It will only if it believes in the values of, and its own ability to contribute to, the post-national entity, and has the consent of those éthnoi already within it. It is the prerogative of free nations to join the common endeavour and secede from it if they so desire.

Federalism is the final theoretical component of the civic-state, providing a more sophisticated approach to the Federation and federal government itself and its relationship with the autonomous republics. Federalism attempts primarily to codify relations between the centre and the periphery, so that central power does not overwhelm and dominate the periphery. Decentralisation has historically been achieved by aristocratic, social control over the monarch as Montesquieu noted Britain had achieved, and which had been all but nullified in France by 1789, leading to an immense centralisation of power, the legacy of which, France still lives with today[70]. Montesquieu’s thought on the advantages of aristocratic, oligarchic rule over a centralised state clearly has influenced Kant’s thought on state forms in Perpetual Peace. Both believed that the removal of the aristocracy would lead to a despotic state; bureaucratic centralisation as a uniquely modern form of despotism[71]. Federalism aimed to replicate the controlling effect of the aristocracy and prevent centralised tyranny, without maintaining oligarchic government. Federalism is fundamentally protective of self-government then, and hence, democratic. It uses the law to protect interests at several levels of society[72]; in the civic-state, that is local, regional and national interests, alongside the common interest. Hence, this also entails several layers of state-authority, loyalty (modified as it is by constitutional patriotism), rights and duties; as this is all undertaken through law, the effective execution of judicial review is key to mediating the legitimate exercise of authority[73]. The significance of the enumeration of powers and its protection has already been mentioned. It is also significant however, for reconciling Kant’s concepts of democracy and republicanism, for federalism limits sovereignty, by creating separate spheres of authority.  Unconstrained sovereignty indeed leads to unlimited power being exercised by a single agent; both constitutionalism and federalism create limits on that authority, enabling a democratic republic, which usefully Greek has reduced to one word: the Dimokratía.

Contra un-federalist federations

From this, we can understand the problems of allocation of power in the current Union and the absence of theoretical understanding, and use federalism to properly critique the Union and plug gaps in the legitimacy of the Federation to be founded in Europe. It is clear, firstly, that the current unity/federal visions of the Union often touted by those pushing for further integration are in fact not truly federalist. Often technocrats in the Commission use the idea of federalism when in fact their objective is a more centralised, bureaucratised union, where the central institutions consume more power without any checks on the extent of their authority[74]. This is directly linked to the original design of the Union, which relied heavily on bureaucratic control of economic forces (cartelism), and is related to the French model of the state, which Monnet no doubt channelled as the Union’s chief architect and a member of the French government[75].

This model has since predominated in the development of the Union’s institutions, where orders are issued from the centre and obeyed by the periphery, the centre necessarily wielding absolute power to advance the interests of the political class[76]. Particularly the Commission, as the head of this bureaucracy, and Court, enabling the upward-transfer of power unhindered, are the primary symbols of Brussels fully embracing the French state-model. The Court in particular has not guarded the enumeration of powers at all, propounding the widest interpretation possible of the ‘flexibility clause’ and the extent of the authority of the Council[77]. This is not democratic and not federalism. Federalism is not about concentrating power at a higher level, but dividing power effectively, establishing it at several levels to be exercised by several levels of the dêmos. It demands a distinct centre, not an oppressive or overpowering one. If we accept that authority can only be established at several levels with democracy at several levels, then it is clear that federalism demands democratic action across society, something the current form of the Union, and other un-federalist federations, undermine.

There can be no bureaucratic government for the people under federalism, for federalism is supposed to counter the centralising, monolithic tendencies of post-feudal government. It must be government by the people[78]: republican, not individualist democracy; Greek, not Roman legitimacy. It is a rejuvenation of democracy informed by subsidiarity, judicial review and an active, fluid and dynamic political society. It is against stagnation. It prescribes the state as a tool of diversity, to be used at local, regional and national levels, rather than monopolised by any one vision of society; the institutional realisation of diversity, and guarantee of autonomy at all levels. It prescribes several centres from which the development of constitutional values can be cultivated, autonomy can be protected, government can be engaged in democratically, and conflict can be mediated. This is the vision of a truly federalist, rather than merely federal, European government. Naturally, it must be recognised that federations of all forms have a tendency towards centralisation in the long run[79]; this may be due to the mechanisms of bureaucratic government, however there are no doubt other factors. Crucially, federations lose sight of federalism; they lack other elements required to maintain a federalist governmental vision, such as self-government and a judiciary informed by the principle of subsidiarity. There are others in the idea of the civic-state: republican democracy that demands active engagement in government rather than the individualist consumption of bureaucratically-generated goods; a civic identity facilitated by constitutional patriotism, that eschews loyalty to tradition and the nation-state in favour of a critical approach to authority, and a discursive approach to meaning. Both of these ask the citizen to be actively involved in shaping politics and the will of fellow citizens in the dêmos, operating at several levels. The discourse theory of law comes into play here[80], arguing that law is legitimate only by the involvement of citizens in authoring it, which necessarily involves opinion and will-formation. Federalism cannot occur through the back-door, but must be actively chosen – This is where the current approach of the European Project has fundamentally failed, and why there must be a Reformation.

Furthermore, the autonomy inherent in Kant’s vision of the pacific federation, preserving the diversity necessary to counter-act the homogenising tendencies of the metropolis, also supports federalism. This diversity, as the fundamental source of dynamism in the European spirit of transgression & adventure must be built into the constitutional document. Critically, what must be taken from all this is that federalism cannot occur through the back-door, but must be actively chosen[81] – it cannot be a matter of systematic integration, to which there is no alternative. This is where the current approach of the European Project has fundamentally failed, and why there must be a Reformation.

Some final thoughts are needed on the civic-state. Firstly, on identity, there are those which might argue that such a state with such power could not be sustained by an identity which does not draw on Eros; in other words, that is not national or ethno-cultural. The discussion above was aimed at making it clear why I believe a state which draws on Civilisation much more strongly, without jettisoning Eros completely, is in fact possible. Furthermore, it seems clear that a political community like the civic-state could not be informed or sustained by a nationalist identity; that is, an arrogant, unquestioning, exclusive and possessive form of identity. The very spirit and purpose of such a state reject such an identity. The sober, critical process of constitutional patriotism, which is dynamic rather than static, is the source of identity for the new form of state; where people identify with the common project of fair government, rather than defer to a static identity. A project influenced by democracy, civil society, free expression and the spirit of exchange, discovery and enterprise. European identity, so understood, must be fluid and evolving. It can have no canon. The constitution represents a culture and history of evolving understanding of universal values, of our historical legacy, of our future path. It is the guarantee of the ability to conduct those discussions and realise those evolved understandings in society; the real potential for change.

Like Kadmos in search of Europa, we will not discover something fixed, but must build it ourselves, according to our own design[82]. The patriotism of the dêmos is in this process, underpinned by the normative concept of equal and free citizens, guided by the question of how to best live peacefully together, informed by these universal values, rather than in a fixed catalogue of values and enforced interpretations, or pride in the state. The state is a tool and an embodiment of this process, not something that itself commands citizens’ loyalty. Essential among these universal values is diversity – the idea of living in a ‘community of others’ in Weiler’s words. Europe would fight to protect and encourage diversity, as peaceful, contained conflict and difference; influences which intermingle, but do not merge. Transnationalism, as the path to the global, rather than realpolitik-internationalism or technocratic-infranationalism; the idea of crossing the mental, legal and physical borders of the nation, to others and appreciating all that intermingles therefrom. The creation of culture, but not a uniform, homogeneous culture; instead a diverse, conflicting culture which is critical and leads to common self-development. This allows us to transcend the nation in a way not as callous and hollow (or authoritarian) as the Hayekian vision (the Catallaxy), or even as dispassionate as the original conception of the Kantian pacific federation. It is not as unimaginative as the ideas of ‘Liberal Order’ or ‘Community’ Internationalism, which rely on divided sovereignty; ours is radical, democratic, republican and reformative.

Finally, a return to Ventotene. In the manifesto, Spinelli and Rossi claim that the new dividing line in politics is no longer between right and left, but between those who seek to conquer the power of the nation-state for traditional ends, and those who seek to use the power of the nation-state as an instrument for achieving international (meaning global) unity. I disagree that this is the only line that matters, though in truth, the dichotomy between nationalism and internationalism is bound up with the dichotomy between the rearguard of old-world privileges, and the vanguard of a more just and progressive world.

Nevertheless, the civic-state does take the power of the state, previously monopolised by the nation, and uses it as an instrument for achieving a more universalist, humanist vision of mankind, even if we must begin in Europe. Furthermore, the civic-state addresses the problems of the three aspects of modern civilisation which, according to the manifesto, have caused its crisis: the sovereign independence of nations, the corruption of democratic government, and the distortion of the spirit of rational criticism.

The federalist civic-state as outlined above preserves national (and lower) autonomy whilst depriving nations of the sovereignty that makes their relations adversarial, their citizens subjects, and their principles hollow. Republican democracy aims to exorcise the corrupting influences on democratic government, placing social justice, freedom from tyranny and determination of our common fate at the foundation of government. Criticism is restored by constitutional patriotism, which places a critical approach to tradition, loyalty and authority at the heart of identity, making the citizen’s relationship with the state less deferential and more active.

A European Federation is one of the few objectives which can be a source of rejuvenation for Europe, specifically its values and ideas in the wider world, a source of empowerment for its citizens, and a tool to solve the problems of the post-modern world. However, it will not be these things as a ‘network’, or a post-sovereign confederation, or an enlarged nation-state, or even as ‘the United States of Europe’. It can be these things as a civic-state, which truly embraces Civilisation with Eros, and embeds them in a real constitution. This reformation into a ‘Union of European Nations’ will not be easy to achieve, and will not be perfect once it has been. But it offers us something tangible and different; it offers us democracy in Europe, which we in DiEM25 believe is necessary to save the European idea. Europe will be democratised, or it will disintegrate, and with it, this generation’s hopes for a better world. Here, I provide an alternative.


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Notes and references

[1] Weiler, ‘The Reformation of European Constitutionalism’, The Constitution of Europe, p.230

[2] Goldsworthy, Pax Romana, p.133-40

[3] Anderson, The New Old World, p.484

[4] Holland, Europe in Question, p.91-2

[5] Spinelli & Rossi, A Manifesto for a Free and United Europe, cvce.eu

[6] Hroch, European Nations, p.39, 50-1

[7] Ibid. p.50-5, 62-6

[8] Marquand, The End of the West, p.128-9

[9] Van Middelaar, The Passage to Europe, p.252-4

[10] Mitrany, ‘The Prospect of Integration: Federal or Functional’, Journal of Common Market Studies, p.124-6

[11] Anderson, The New Old World, p.501; Habermas, The Lure of Technocracy, p.30, 51-5

[12] Marsili & Milanese, Towards a Transnational Democracy for Europe, p.8-9

[13] Bauman, Europe, p.70

[14] Monnet, Memoirs, p.296

[15] Weiler, ‘Fin-de-siècle Europe: do the new clothes have an emperor?’, The Constitution of Europe, p.250

[16] Weiler, ‘To be a European Citizen: Eros and Civilisation’, The Constitution of Europe, p.330-2

[17] Ibid. p.347

[18] Müller, Constitutional Patriotism, p.1-2, 59-60, 65

[19] Ibid. p.29-30, 63

[20] Ibid. p.32-4, 66-7

[21] Ibid. p.68-9

[22] Ibid. p.65

[23] Marquand, The End of the West, p.84-5

[24] Ibid. p.121-2

[25] Bauman, Europe, p.124-130

[26] Münchau, ‘European values are more important than economics’

[27] Müller, Constitutional Patriotism, p.32

[28] Bauman, Europe, p.60, 77-8

[29] Ibid. p.7

[30] Ibid. p.8

[31] Müller, Constitutional Patriotism, p.126-30, Weiler, The Constitution of Europe, p.269-71, 341-3

[32] Weiler, ‘To be a European Citizen: Eros and Civilisation’, The Constitution of Europe, p.328-9

[33] Varoufakis, And the Weak suffer what they must?, p.221-3

[34] Ibid. p.101-4

[35] Müller, Constitutional Patriotism, p.126-7

[36] Weiler, ‘To be a European Citizen: Eros and Civilisation’, The Constitution of Europe, p.339-40

[37] Garton Ash, History of the Present, p.323-31

[38] Marquand, The End of the West, p.106

[39] Holland, Europe in Question, p.36-7

[40] Carchedi, For Another Europe, p.29-34

[41] Hayek, ‘The Economic Conditions of Interstate Federalism’, The New Commonwealth Quarterly, Vol.V, No.2 p.137

[42] Varoufakis, Adults in the Room, p.323-8

[43] Ibid. p.434-5

[44] Anderson, The New Old World, p.58

[45] Ibid. p.62

[46] Monnet, Memoirs, p.394-5

[47] Verhofstadt, Europe’s Last Chance, p.7

[48] Ibid. p.28-9

[49] Draft Treaty embodying the Statute of the European Community, cvce.eu

[50] Ibid. p.29

[51] Draft Treaty establishing the European Union, cvce.eu

[52] Bauman, Europe, p.68-9, Marquand, The End of the West, p. 131-3, Spinelli, The Eurocrats, p.19-20, Hallstein, Europe in the Making, p.292-3

[53] Kant, Perpetual Peace: A Philosophical Sketch, translated M. Campbell Smith, p.120, 128, 147

[54] Vile, Constitutionalism and the Separation of Powers, p.1-23

[55] Habermas, ‘European citizens and European Peoples’, The Lure of Technocracy, p.34

[56] Bauman, Europe, p.40

[57] Hroch, European Nations, p.89-94

[58] Habermas, ‘European citizens and European Peoples’, The Lure of Technocracy, p.45

[59] Marquand, The End of the West, p.131-4

[60] Bauman, Europe, p.125

[61] Verhofstadt, Europe’s Last Chance, p.34-5

[62] Ibid. p.79

[63] Spinelli, The Eurocrats, p.25, van Middelaar, The Passage to Europe, p.2-6

[64] Bauman, Europe, p.129

[65] Siedentop, Democracy in Europe, p.81-5

[66] Pettit, On the People’s Terms, p.92-4

[67] Anderson, The New Old World, p.60

[68] Pettit, On the People’s Terms, p.77-81

[69] Müller, Constitutional Patriotism, p.63

[70] Siedentop, Democracy in Europe, p.6, 105

[71] Ibid. p.2, 6

[72] Ibid. p.94

[73] Ibid. p.95-6

[74] Ibid. p.115-7

[75] Holland, Europe in Question, p.36-41

[76] Siedentop, Democracy in Europe, p.107-13

[77] Weiler, ‘The Transformation of Europe’, The Constitution of Europe, p.39-63

[78] Siedentop, Democracy in Europe, p.125-8

[79] Weiler, ‘The external legal relations of non-unitary actors’, The Constitution of Europe, p.130-6

[80] Habermas, ‘Keywords on a Discourse Theory of Law’, The Lure of Technocracy, p.47-50

[81] Siedentop, Democracy in Europe, p.80

[82] Bauman, Europe, p.1-2

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