The American Spectator

Templeton Essay

Freedom and the Nation-State

By Jeremy Rabkin from the November 2008 issue

(Page 3 of 3)

But if the European Union is hostile to nationalism, it is not really hostile to the nation-state. Indeed, it depends on the nation-states for its survival. It is not simply that it has no army. It has no police. It has no criminal law or criminal courts of its own. It does not even have field agents. All its policies must be implemented by national governments, so that citizens feel the sting of EU policies only through the pinch of enforcement actions by national officials in their own countries.

Major EU policies must be approved by a council of ministers from member governments. In many areas, policies can be established even when not all governments approve, but there must be a “qualified majority”—in a system that gives extra votes to more populous states but requires majorities of both governments and population-weighted votes. The European Commission proposes new policies for the council of ministers and then prepares detailed implementing regulations for national governments. The European Court of Justice hears appeals from national courts to clarify the meaning of EU treaties and standards, leaving national courts to work out applications in particular cases.

But the EU does not have a genuine government of its own. There is a directly elected parliament, but its powers are limited to rejecting major measures. Though successive treaties have tinkered with details, there has never been a serious proposal to give the same powers to the European Parliament that parliaments have in all the member states. To do so would be to admit that all smaller states could be outvoted and overwhelmed by the European majority, like rural counties in a national parliament.

So the EU, while acquiring a very broad range of powers, is not trusted to exercise some of the most fundamental powers of government. It is mostly financed from European-wide tariffs and lacks separate taxing authority. Compared to national governments, it has very little revenue and (apart from agricultural subsidies and some development subsidies to less affluent members) very little spending responsibility. It is not trusted to administer retirement pensions, health insurance, school finance, or other major responsibilities of national governments. It has no separate executive to provide leadership in a crisis, but merely a “president”—the prime minister of a member state serving for six months until  all members (including Luxembourg) have had their chance rotating through the half-year “presidency.” The proposed new constitution for Europe sought to strengthen the office by giving it a three-year term and election by other prime ministers instead of automatic rotation, but it did not propose any serious increase in powers to the office.

So the EU does not supplant the member states but feeds off their legitimacy. The parliament has never developed parties of its own. Candidates compete as members of national parties that then form loose alliances within the European Parliament. The most visible and engaging aspects of public life— the sorts of things that get most attention in national media—are lacking in the EU. There is no great wrangling among contending parties and contending interests on big questions of allocation—the prizes in legislative and electoral politics. There are no dramatic initiatives to handle a crisis or mobilize support for a bold new project—the stuff of executive leadership. Almost everything gets swallowed in technical details of bureaucratic directives or judicial interpretations.

And here, surely, lies the growing crisis within the European institutions. Established as an alternative to the nation-state, the EU depends on the nation-states for its precarious legitimacy. At the same time, its powers—exerted by an unelected European Commission, and a parliament that can do little except veto the Commission’s measures— are resented by national electorates, so much so that, in the rerun of the treaty for a constitution, the European leaders have done their utmost to prevent referendums in the member states. The Irish, obliged by their own constitution to have such a referendum, decisively rejected the treaty in July of this year, though no doubt some way will be found to ignore the Irish vote.

Moreover, officials in national governments estimate that more than half of the legal standards they enforce today are actually derived from EU mandates. A body that imposes such an enormous legislative burden on people who have no say in controlling it will not inspire loyalty. Indeed, citizens of the nation-states regard the EU as so far from making any real claim on their allegiance that most do not bother to vote in elections to its parliament. In the EU we see a gradual confiscation of the powers of national governments without any corresponding accountability for their exercise. And the resulting deficit in legitimacy could be reversed only by acknowledging once again that legitimacy begins and ends in the nation-state.

The Stakes for Liberty

MEANWHILE, IN THE United States, human rights advocates have been protesting American war policies for defying international humanitarian treaties, as these are read by the International Red Cross and Amnesty International. And the U.S. Supreme Court has, in a number of cases since 2002, invoked international treaties (including some not ratified by the U.S. Senate) and human rights rulings in foreign countries to determine what the U.S. Constitution should be interpreted to require.

It may seem ironic that transnational impulses have gathered momentum in the United States, just as they have been faltering in Europe. But in a way it is logical. The great historic achievement of the nation-state has been to create political space for open debate. Citizens may disagree in their outlook or ideological dispositions, but political debate in a nation-state will be pulled back to common questions of safety and prosperity. If you want to escape political debate, it makes sense (in a way) to embrace some imagined consensus of mankind, which can appear more consensual and unified the more abstract it is. So almost no one urges that the UN be stripped of responsibility for protecting human rights, even though the UN Human Rights Council, now chaired by Cuba, has decided to concentrate on the threat of Islamophobia in Western countries rather than mass murder in Sudan. But the abstract idea of world concern for human rights is so edifying—and amorphous—that it shields the UN from any serious assessment of its performance. The EU floats in a similar cloud of protective abstractions, being less like a government than a church—an entity supposed to inspire proper attitudes rather than take responsibility for actual results.

Perhaps none of this would matter if free countries in the world faced an untroubled future in which most decisions could be safely delegated to technical specialists. But that is not the situation. Lower birth rates and rising life spans mean government pension and health care systems will face increasingly sharp strains. This problem is particularly serious in Europe, and although immigration might ease the problem, most European nations have had great difficulty integrating immigrants,  particularly Muslim immigrants who have clustered in self-segregated communities. Within these communities, Islamists challenge the jurisdiction of European nation-states and insist that within a few decades, Europe will be governed by sharia. The European Union cannot secure the loyalty of immigrant communities, much less maintain necessary measures to detect and disrupt terror networks. Only nation-states can hope to maintain the authority of law—and the personal freedoms, religious toleration, and open debate that are guaranteed by national legal systems. So the future of freedom in Europe will depend on the durability of its nation-states.

Jeremy Rabkin is professor of law at George Mason University School of Law and the author of Law Without Nations? (Princeton University Press), The Case for Sovereignty (AEI Press), and Why Sovereignty Matters (AEI Press). This essay is the ninth in a ten-part series being published in successive issues of The American Spectator under the general title, “The Future of Individual Liberty: Elevating the Human Condition and Overcoming the Challenges to Free Societies.” The series is supported by a grant from the John Templeton Foundation. The opinions expressed in this series are those of the authors and do not necessarily reflect the views of the John Templeton Foundation.

Letter to the Editor