Posted 7:53 AM by Robert

Re-routing The EU Constitution

The EU Constitution appears headed for a French Sunday rout, with recriminations, finger pointing and accusations already begun:

"The thing is lost," [head of Chirac's conservative Union for a Popular Movement,] Nicolas Sarkozy told French ministers during an ill-tempered meeting. "It will be a little 'no' or a big 'no,' he was quoted as telling Jean-Pierre Raffarin, the Prime Minister, whom he accused of leading a feeble campaign.

Mr. Sarkozy is now - through a spokesman - denying that he ever said that the fight was lost. But he would.

Aside from demonstrating that the French are surrender monkeys not only in military affairs, Mr. Sarkozy's comment demonstrates a profound misunderstanding of a big part of the Constitution's problem: The more vigorously the French elites campaign for the Constitution, the more opposition to it grows.[UPDATE (5/27): Following President Jacques Chirac's last-ditch effort to shift the momentum ahead of Sunday's vote, his ruling Union for a Popular Movement (UMP), the opposition Socialists (PS) and other treaty backers launched a campaign blitz. .... Two new opinion polls released Thursday said treaty rejectionists would win Sunday's referendum with 55 percent of the vote -- a 10-point advantage over constitution backers, and a rise of two points from earlier this week.]
The reason for that phenomenon is rooted in the decline and disorientation of the French higher education system and the bureaucracy. The reason also suggests why re-voting the same Constitution - which is now advocated by some - will almost certainly not work. Such suggestions are worthy of a response similar to those offered by the professor of differential equations to the then-Governor of Washington State after the collapse of Galloping Gurdy, the bridge that suffered catastrophic failure during a windstorm, when the governor suggested that the state should rebuild the exact same bridge in the exact same place: "If the governor rebuilds the exact same bridge in the exact same place it will collapse in the exact same way." The likely failure of the EU Constitution also sheds light on the fight in the United States Senate over judicial appointments - a light casting unpleasant shadows for Democrats.

The government of Charles DeGaulle erected the French post-War education system - and, especially, the higher education system - to supply competent, trained functionaries for the new "modern" French state. Administration, science, education and other fields all received their designated ecoles or had them greatly enhanced. The education system was a bulwark against the broad (but by no means universal) French tendency to respect only well positioned bureaucrats, not scientists and other people of "merit," and the corresponding nationwide crony network that tends to thereby form. In large measure De Gaulle created a largely meritocratic system of national rule by the brightest kids in the class. And it largely worked: a generation of competent, well trained technocrats and technologists elevated France to undisputed prosperity and largely defied the French tradition of destructive cronyism.

But the system has been breaking down for a long time - in large measure as the result of ill considered "reforms." A few weeks ago I visited an old friend, now a professor at the Ecole Normale, having left the Ecole Polytechnique some years ago after it's focus was "reformed" away from training scientists and towards training scientific bureaucrats. Incredibly, following such "reforms" the Ecole Polytechnique is no longer a particularly good place to learn to be a physicist. But it is a better place to learn to be a bureaucrat who works with scientific jargon. Now, the Ecole Normale is to be similarly "reformed" away from its focus on training educators in favor of a focus on training academic bureaucrat. The "reform" process in higher French education in favor of an ever increasing production of bureaucrats has been likened to the unlimited propagation of "Smith's" in the later, less appealing, "Matrix" movies. The result is an increasing population of elite, selfish, aggressive bureaucrats who don't very much know what they are doing - except in matters of bureaucratic politics. As my friend on the Normale faculty put it: "It's easy to feel that if I could just get any one of the recent graduates of the Polytechnique alone in a room for an hour, I could convince him or her that the earth is flat."

And the French people have caught on. There is a widespread perception in France that recent graduates just don't know very much about the real world (sometimes this concern is tied to the French excessive love of "abstraction," but the problems are only related). There is a direct feed from the higher French education system into the highest ranks of the government and business bureaucracies. That feed was an intended, deliberate feature of the "rule by the smartest kids in the class" system. Not surprisingly, there is a widespread sense in France that elite bureaucrats, especially the younger bureaucrats, don't know very much about the real world but are mostly concerned with manipulating an existing system to secure and maintain a comfortable life for themselves at the expense of the French people generally. The French people sense that because it is all glaringly true and that's what these bureaucrats are increasingly trained to do.

As the post-war meritocratic bulwarks erode, the French system is lapsing into its old cronyism and naked, gluttonous careerism - a kind of sociological pentimento from the Ancien Regime. The French governing elite is now seen as largely parasitic and having values and aspirations quite different from and adverse to those of the governed, who are widely seen as mere hosts. In the darkest versions of these considerations, the elites are considered a kind of non-partisan conspiracy of cronies, trained in the Grand Ecoles in matters of sterile manipulation, and out for nobody's interests but their own, conceived in the most unenlightened and narrowest possible fashion.

A series of recent elite government/business scandals has driven the argument home and made it irrefutable. There is the food-for-oil scandal, which reaches to the highest levels of the French government and oil industry. The French finance minister blotted up $18,000 a month in government paid rent on his luxury apartment, while lying about his need for it and to French workers about their need to tighten their belts. The oil company Total was involved in a court case in France that exposed corruption on a vast scale going to the highest levels of the French state. Many scandals dog Chirac himself, including accusations he presided over a multimillion-dollar political kickback scheme, benefiting his former Rally for the Republic Party when he Paris mayor and French prime minister. And there's plenty more, both serious and not. The cumulative effect has been devastating.

And the French people have caught on to that, too, at least to the point of general suspicion regarding the character and competence of their elites. Such mere public cynicism and suspicion is not a foundation for a social compact. But such is the current state of the ongoing, self destruction of the French system. One consequence of the disillusionment of the Franch voters with their educated classes and bureaucrats is a declining sense that France could dominate the EU through the efforts of these people, which was and is a major reason for French support of the EU. The widely-heard view that the Constitution would unleash "unlimited capitalism" essentially reflects a sense that the elites are wrapped up in their cronyism and don't care about the ordinary people together with a separate sense that the elites are now incompetent to protect ordinary people even where the elites may be inclined to do so.

Into all of this falls the EU and its hapless Constitution, drafted by none other than Valery Giscard d'Estaing, the former French President, recipient while in office of a diamond necklace from a cannibal and Superieure de Mare of the ruling elite of smartest kids in the class. The elites love the Constitution, and the more they show that love the more ordinary French voters see the document as the creature of that largely detested elite:

"There is a real division in French society today between France from on high and France from below," said Jean-Paul Fournier... who supports the constitution, but whose citizens voted in 1992 against the EU treaty that ushered in the euro. .... Patrice Couderc, secretary general of the CFDT union of the Gard region, added another angle: ... "The worker, the person in the street, doesn't understand the debate of the elite."

Such comments understate the dimensions of the problem. Comments like these of Messrs. Fournier and Couderc suggest that it is just a matter of varying perceptions of the Constitution, and of the non-elites not understanding. But that is wrong. The real problem is that the non-elites increasingly detest and suspect the elites and view the Constitution as yet another power grab by those elites. So when the French government pushes for the Constitution, the people further identify that document with the French government and its creatures - and support declines. When the various political parties join together to endorse the document, the effect is to reinforce the public perception that the elite conspiracy and cronyism is no respecter of party affiliation - and therefore that the political parties offer no real choice to the voters and are merely out for themselves in opposition to the interests of the voters. When support for the Constitution comes from other EU member states, ordinary voters mostly conclude that the conspiracy of elites now is no respecter of national boundaries. Take notes, Mr. Sarkozy.

And those ordinary voters are, in large measure, correct - although not in the details. Huge parts of the EU Constitution are extensive, detailed legislative and regulatory provisions that would be more at home in, say, the Code of Federal Regulations than in any constitution. And much of the EU Constitution is at least arguably, and probably absolutely, internally inconsistent. The effect of such a structure will necessarily be to deliver the reconciliation of these sweeping, inconsistent, detailed provisions into the hands of the EU courts and unelected, fact-finding bureaucrats. And, since these are Constitutional provisions, the voters elected representatives - at the levels of both the EU and its constituent member states - will be neatly expelled from much of the bureaucratic paradise Mr. d'Estaing has wrought. How could anything wrought by his hand have been otherwise?

The EU Constitution is famously and absurdly long. Does that mean that a mess like the one this Constitution would create can't happen here in the United States? Of course not - such a mess already has largely been created, although the EU Constitution would admittedly go well beyond its American counterpart! As ably summarized by Lino Graglia only a few days ago:

The battles in Congress over the appointment of even lower court federal judges reveal a recognition that federal judges are now, to a large extent, our real lawmakers. ...

[C]ontemporary [American] constitutional law has very little to do with the Constitution. Judge-made constitutional law is the product of judicial review--the power of judges to disallow policy choices made by other officials of government, supposedly on the ground that they are prohibited by the Constitution. Thomas Jefferson warned that judges, always eager to expand their own jurisdiction, would "twist and shape" the Constitution "as an artist shapes a ball of wax." This is exactly what has happened.

The Constitution is a very short document, easily printed on a dozen pages. The Framers wisely meant to preclude very few policy choices that legislators, at least as committed to American principles of government as judges, would have occasion to make. .... [T]he great majority of Supreme Court rulings of unconstitutionality ... purport to be based on a single constitutional provision, the 14th Amendment--in fact, on only four words in one sentence of the Amendment, "due process" and "equal protection." The 14th Amendment has to a large extent become a second constitution, replacing the original.

In other words, activist American judges have simply taken the brevity of the original American Constitution as a kind of blank paper on which to write their own, vastly extended EU-variety Constitution. Add to that the growth of the regulatory state - in which Congress passes vague statutes that delegate their construction and enforcement to unelected administrative agencies subject on to remote and abstract judicial review - and one gets a fairly good idea of how the creatures of the Beltway are determined not to be outdone by their EU counterparts in their quests for unaccountable power.

And that quest is what has led to the current ruckus in the Senate over judicial nominations. That ruckus may fairly be said to have reach a standstill at the moment. But it will soon hot up again. And when it does, the Democratic Senators who are so determined that liberal, activist judges dominate the federal courts and continue their re-writing of the American Constitution may want to look across the Atlantic to the disaster the European elites are now facing after so carefully constructing their own bridge too far in the form of this EU Constitution.