Marianne Unfaithful

French democracy has blundered its way to the right result. Most of the arguments advanced by the "non" side in Sunday's referendum on the European Union Constitution were exaggerated, misleading, or outright falsehoods. And yet beneath those arguments was a larger truth that will likely also be recognized and acted upon by Dutch voters in their balloting today.

The French, the Dutch, and other Europeans have lost patience with political systems that seem increasingly remote and political elites that seem increasingly disdainful of the interests and values of the people they claim to represent. If the French voted "non," because they sensed that the EU Constitution would aggravate those problems, then they voted very shrewdly. Indeed, only a political system as seemingly remote and disdainful as the EU has become could have produced a document like the EU Constitution: interminably long, confusingly organized, obscure in its effects, and in many crucial spots almost deceptive in its purposes. It seems almost too heavy-handedly symbolic that while the U.S. Constitution opens with the resounding words, "We the People of the United States," the first words of the EU Constitution are: "His Majesty the King of the Belgians . . ."

French opponents of the EU Constitution charge that it is an "Anglo-Saxon" document that would impose a harsh "neo-liberal" free-market regime. In truth, the EU Constitution owes little or nothing to the constitutional traditions of the English-speaking world. It would establish a legislature that cannot write laws, a judiciary that can act even when no law has been broken, and an executive that is not elected by and is barely accountable to anyone or anything. As for accusations of "neo-liberalism," they miss the point. The Constitution vastly expands the powers of the unelected and largely unaccountable European Commission and the unelected and wholly unaccountable European Court of Justice (ECJ).

It's possible that court and commission might push unwilling countries to open markets to more competition. It's equally possible that the newly empowered commission and court might impose burdensome rules and regulation. Or they might do a little of one and a little of the other. Who knows? The only thing we can say for sure is that large areas of decision-making have been removed from governments elected by Europe's peoples and entrusted to bureaucracies carefully insulated from democratic control.

This "democratic deficit" is often cited by European elites as a malady to be cured. The EU Constitution adds to this democratic deficit in four major ways. First, it moves important powers away from the elected governments of the 25 member states to the Commission in Brussels. National vetoes are eliminated as areas from health care to defense are transferred from national to Union jurisdiction. Second, within that centralized EU, the constitution shifts power from the elected heads of government who together make up the European Council to the unelected bureaucrats who staff the Commission and the unelected judges of the ECJ.

Third, while the constitution speaks glowingly of the "democratic life of the Union," in fact the Commission has been carefully protected from interference by elected officials. Although the constitution declares that the Commission is "responsible to" the European Parliament, that parliament remains in practical fact as powerless relative to the commission as ever. Unlike Congress, the parliament cannot initiate legislation. Unlike the British Parliament, it cannot ask questions of the members of the executive. Theoretically, the European Parliament can force the commission to resign, but it must do so by means that look much more like an impeachment than like a vote of non-confidence: by a vote of censure passed by a two-thirds majority.

Fourth, the constitution greatly expands the power of the only European institution even less representative than the commission: the ECJ. To call this body a "court" is really a misnomer. A court exists to adjudicate disputes between parties according to law. The ECJ has vastly larger powers, some deliberately granted, others that will arise from the imprecision and indecision of the European Constitution's authors. For example, the court is called upon to enforce the EU's charter of rights. But that charter is written in a strange way. Sometimes it expresses itself in ways that sound like law: "Everyone has the right of access to a free placement service." (Art. II-89.) Almost as often, it makes sweeping declarations that seem intended as something less than law: "The Union recognizes and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life."(Art. II-85)

The constitution seems aware of this ambiguity: Art. II-107 declares that anyone suffering any violation of those "rights and freedoms guaranteed by the law of the Union" is entitled to "an effective remedy before a tribunal." That holds open the possibility that some of the charter's "rights and freedoms" are not guaranteed by the law of the Union--and invites future European courts to decide for themselves which rights and freedoms they would like to enforce and which they will forget.

For almost five decades, American administrations of both parties have taken it as axiomatic that ever-closer European integration is in America's national interest. Even the Bush administration, which has overthrown so many outdated shibboleths, has not yet liberated itself from this one. The European Constitution explicitly subordinates nearly all the member states' old obligations to NATO to their new obligations to the EU. That alone should be reason enough to disturb any Alliance-minded European or American. Yet many inside the administration keep pushing the president to support and endorse the European Constitution. Indeed, on the eve of President Bush's February trip to Europe, sources within the National Security Council leaked to the New York Times an early draft of a speech that would, in the words of reporter Elisabeth Bumiller, "make clear that the United States welcomes the drive toward European unity." That enthusiastic language was cut before the speech was finally delivered. But the thinking that produced the language survives inside the Bush State Department and NSC.

All can agree that a strong Europe--a secure, prosperous, and self-confident Europe--is in America's interest. There is nobody over here who fears European strength: Indeed, the only people who see a united Europe as a rival to the U.S. are overheated Eurocrats. Americans should fear European weakness--and this constitution weakens Europe by diminishing democracy, alienating voters, and discrediting the legitimacy of necessary economic reforms.

Jeffrey Cimbalo and David Frum are members of the European Constitution study group at the American Enterprise Institute.