Lost causes: Losers carry on and voters be damned

Those of us who grew up in the American South are familiar with the Lost Cause, a profound nostalgia for the defeated Confederacy among our elders, many of whom (like my own grandparents) imbibed it at the feet of Civil War veterans. What might be termed “Lost Cause-ism” is a more general response to defeat, an inchoate mourning for “what might have been” coupled with a deep resentment of the victors. One can see it in Putin’s reaction to the Soviet Union’s defeat in the Cold War, and it is certainly a factor in the resistance of Bosnian Serbs to the Western-sponsored government in Sarajevo. A less violent example is the British Remainers who have yet to accept their 2016 referendum defeat and are determined to reverse Brexit through “dynamic alignment” with EU rules, culminating in membership in the Customs Union. This would give the UK no voice in formulating important rules under which Britain would live, and defeat the Parliamentary sovereignty Brexit was intended to restore. No matter, to devout Remainers, the Lost Cause of EU membership must be sustained.

At least the fight over the Lost Cause of Britain’s EU membership is playing out in full public view, with major party figures staking out their competing claims before the electorate. By contrast, the EU’s own Lost Cause is far less visible yet it powerfully animates functionaries determined to ignore the results of the referenda that ended their hopes for the EU Constitution in 2006. This document was to be the culminating achievement of the European project and replace the awkward treaty structure of the emergent Union. Ultimate sovereignty under the governing treaties remained with member states, parties to agreements dating back to the Treaty of Paris that established the Coal and Steel Community in 1951. The proposed constitution would enshrine the supremacy of EU law over member states and codify treaty language into a single governing document. Ratification of the Constitution would mark the emergence of the EU as a true federal union and subordinate the member states to the greater European Union. 

Alas for Euro-federalists, the constitution failed after lopsided votes in France and the Netherlands. These states weren’t Denmark, who could be told to go off and think hard before voting again on the Maastricht Treaty in 1993. No, these were two of the Great States of Europe, founding members of the EU, and their votes killed ratification. But in the eyes of the Brussels elite, the idiot voters could be damned. The Lost Cause of the EU Constitution would endure, initially in the Lisbon Treaty, which rammed its key provisions through without those pesky referenda, and subsequently in the actions of EU officials who imposed the spirit of constitutional supremacy without any actual constitution to back them up.

The most recent manifestation of European Lost Cause-ism are the actions of the Court of Justice of the European Union (CJEU).  In a decision handed down just before Christmas, the high court agreed with a complaint filed by the European Commission against Poland’s Constitutional Tribunal, control of which had varied depending on which party enjoyed a majority in the Sejm, and is still dominated by judges appointed by the previous Euro-sceptic Law and Justice party. The Commission took particular offence to the Tribunal’s ruling that the Polish Constitution was the supreme law of the land and that the CJEU’s interventions on the structure of the Polish judiciary lay outside the scope of its authority as specified in the treaties governing the Union, which state that “competencies not conferred upon the Union in the Treaties remain with the Member states” and that “the EU can act only within the limits of the powers given it by Member states” (TEU, Articles 4 & 5).  You may look long and hard at the Maastricht and Lisbon treaties and find no conferral of rights over the organisation of national judiciaries to the Union. Rather than accept these limits on its powers, the CJEU conjured up prerogatives deriving from the Lost Constitution and asserted its primacy over the Polish Tribunal and the Polish Constitution.   

The CJEU further held that only EU institutions may assess the limits of the powers granted them by member states, which in practice would eliminate member state standing to challenge Union overreach. The Lost Constitution gave the Union similar powers to extend its powers at the expense of member states if “objectives … can be better achieved at Union level”. The CJEU is reviving key elements of a document rejected decisively by voters through judicial fiat: 27 appointed judges can apparently magic up constitutional supremacy in defiance of the actual treaty language governing the EU.  

The US Constitution has endured for nearly 250 years because of a cautious delineation between the powers granted the federal government and the states.  The Supreme Court retains its legitimacy in large part by weighing challenges to federal authority by the states, whose claims of federal overreach enjoy standing before the court equal to legislation approved by Congress. The CJEU by contrast would grant Brussels the right to judge itself should member states complain of overreach.  Europe’s highest court appears determined to vindicate the wildest fears of populist parties: That Brussels may freely disregard the concerns of its member states and its voters by adjudicating their complaints on its sole authority.  One may venture that decisions restricting the powers of Brussels will become vanishingly rare.

A democratic rebuke should result in a rethink of policies rejected at the ballot box. Lost Cause-ism after the 2006 votes encouraged EU elites to ignore the popular will and use administrative levers to gain the powers citizens declined to give them. The phantom constitution implied by the decisions of the CJEU may accord with the fondest dreams of diehard Euro-federalists, but imperils the foundational principle of democracy: The consent of the governed. Elevating the power of the Union over the treaty rights of member states will please the Commission but it obviates the normal means of challenging bad policies in a democratic system. Given the EU’s alarming propensity for policy errors since the turn of the century, its high court should be bolstering the resilience of the Union with greater oversight by member states and voters. Instead, the CJEU stands revealed as less an independent judicial authority and more the corporate counsel for the European Commission.

Credit to the Rule of Law Observer for its analysis of the CJEU decision.