Liberty, Prudence, Imperfection, and Law

“Postmodern Citizenship,” By David Conway

Is it time to disband the European Union?

The collapse of the Soviet Union transformed the political landscape of the West no less profoundly than it did that east of the former Iron Curtain. Long moribund but virulent nationalisms were quickly aroused in the Balkans, as were equally intense tribal rivalries in several of the Soviet Union’s former client states in sub-Saharan Africa. Ensuing civil war and violent conflict led a large exodus of refugees from these troubled regions to seek asylum in the West, along with many economic migrants, whose numbers were swollen by the large international population flows that attended the sudden global expansion of capitalism also triggered by the Soviet Union’s collapse. In Europe’s case, foreign immigration was further augmented by the opportunity the Soviet Union’s collapse presented Germany to reunify and many of the Soviet Union’s former satellite states in Eastern Europe to join the European Union.

As a result of these demographic changes, America and Europe became more diverse than ever before. This presented each with the challenge of accommodating their newcomers, a challenge made still more formidable by one further change they underwent as a result of the Soviet Union’s demise. Previously many of their intellectuals, scholars, and opinion-formers had been more sympathetic and favorably disposed toward socialism than they were to liberal democracy and capitalism. While the demise of the Soviet Union finally discredited socialism in the eyes of all but the most doctrinaire of them, it did not diminish their longstanding antipathy to their own domestic political cultures and institutions. In need of a new unsullied political morality with which to legitimate and articulate their continued antipathy toward liberal democracy, many formerly socialistically minded westerners found what they were looking for by embracing a new human rights ethic and associated ideal of global citizenship that quickly gained enormous traction in the West. Suddenly, nation-states and international borders began to be considered anachronistic, while supranational institutions and forms of governance, like the European Union and the United Nations, became feted and favored.

It is against the background of these demographic and political changes that the essays in this volume were composed and are best considered. They were originally delivered at a conference in Washington, DC, held in 2008 under the auspices of the Transatlantic Law Forum, a joint venture of the American Enterprise Institute and the American-European Council on Public Policy based in Bayreuth. They consider how the understanding, experience, and practice of citizenship in Europe and America have been affected and altered by the recent demographic and political changes they have undergone since the collapse of Soviet communism.

The first two essays assess the merits of a novel form of patriotism lately widely commended as ideally suited for America and Europe given their present diversity. Called in German Verfsassungspatriotismus and in English “constitutional patriotism,” this new form of patriotism originated in post-war Germany, being initially devised there for its demoralized, guilt-ridden citizenry no longer morally able to identify with its bellicose and bloody recent Nazi past.

Constitutional patriotism differs from its more traditional counterpart in not involving attachment to any specific historical political community. Instead, all it supposedly involves is attachment by the citizens of liberal democracy to its constitutive political institutions, such as the rule of law and representative government. It is considered best suited to present-day circumstances by not involving any potentially exclusionary or divisive attachment to any particular ethnicities or acceptance of any potentially contentious narratives about a country’s past that newcomers often find difficult, if not impossible, to accept or identify with.

The authors of the volume’s first two essays, Josef Joffe and William Galston, give short shrift to this new, postnational form of patriotism. They deny it can offer the citizens of any liberal democracy any reason to feel attached to it rather than any other such state. They claim it is too free-floating and unspecific to be able to generate the loyalty and commitment states, including liberal democratic ones, have traditionally demanded of their citizens.

As Joffe notes, however, traditional patriotism might merely be the product of historical circumstance, no longer suited to our globalized times. Indeed, Galston identifies several recent trends in America that all seemingly militate against its continued formation in its citizens and would-be citizens. He remarks: “We are notably ineffective in teaching our history and civic traditions to our children; we hardly try. Nor do we expect much of adult citizens – not voting, not military service, not paying taxes adequately to defray the costs of government… We are coming closer and closer to the view of citizenship … [as merely comprising] the right to sue and be sued” (40).

Despite the ever diminishing civic demands America is apparently placing on its citizens and would-be citizens, Galston remains sanguine as to its enduring capacity to elicit and sustain their loyalty and commitment. He writes: “Americans’ ignorance about their country is matched only by their patriotic attachment… And in the face of great challenges, Americans can always be counted on to do the right thing…” (40).

Whether America will always, or for much longer, be able to assume and depend on its citizens’ patriotic attachment remains to be seen. As Joffe observes: “There is a strong whiff of post-nationalism in the air… [that encourages every] state to emphasise rights and entitlements over obligations and sacrifice” (25–26).

That whiff of postnationalism is discernible in several contributions to the volume. It may be detected in the suggestion made by Francesca Strumia that the development of a common European citizenship is currently being impeded by the present inability of its immigrants to count toward their acquisition of EU citizenship the entire period of their continuous residence within it, as against that within one of its member states. That requirement, she argues, not only obstructs their efficient deployment in European labor markets, it unduly privileges national above European citizenship.

Similar postnationalist ardor is exhibited in Markus Kotzur’s essay explaining what “added value” European citizenship confers, given that its “associated rights, duties, chances, and responsibilities do not extend far beyond the status nationals of the member states already enjoy” (72). He writes: “European citizenship can be seen as a promise and a process. The promise is… to build a European constitution with the citizen as the democratic sovereign. The process is the continuous formation of a body of European citizens… by granting them rights, encouraging their political participation, and seeing them as the constituents of a European public sphere” (81).

Very little of any such promise or process was in evidence in 2007, when, after the French and Dutch had rejected a proposed European Constitution in referenda two years earlier, practically all the provisions contained in that rejected constitution were adopted by the Lisbon Treaty as amendments to preexisting treaties, thereby circumventing any further need to consult or obtain the consent of Europe’s clearly refractory citizens.

As to Strumia’s suggestion that the EU should provide its economic immigrants with an easier route by which to acquire EU citizenship, its validity is entirely conditional  upon her assumption that the EU needs them to make good a predicted shortfall of workers arising from its aging population and a low native fertility rate. As Strumia puts it: “Low birthrates throughout Europe… threaten their welfare system… Immigration represents the main way for Europe to cope with this demographic crisis” (47).

Tucked away, however, in a footnote to the paragraph containing this statement is a caveat Strumia enters which entirely vitiates her assumption. She writes: “By bringing a young workforce to the EU, immigration offers solutions to the welfare problems posed by the decline in birthrates; on the other hand it contributes to the problem, as most immigrant workers remain employed in low-paying activities and this enlarges the class of workers who contribute less than they receive to national welfare systems” [my emphasis] (64). Quite.

Furthermore, persistent high rates of unemployment in the EU belie its need to have admitted the large numbers of foreign immigrants it has. Official figures show EU unemployment currently running at 10 percent. Despite the economic downturn there since 2008, its rate of unemployment was not appreciably any lower a decade earlier, when it stood at 9 percent. Even at its lowest, just before the banking crisis of 2008, EU unemployment exceeded 7 percent. Was there, and is there, really any need for mass immigration to fill job vacancies, given how high unemployment is there?

Postnationalists, however, seldom seem bothered by awkward facts that cast shadows on their invariably sunny supranational idylls. Such disregard for awkward facts is exhibited by two further contributions, each by a judge: one European, one American. The European judge is Jean-Claude Bonichot of the European Court of Justice; the American judge is Diane Wood.

At the conclusion of his essay in which he boasts about what a “great role in building European citizenship” (130) has been played by the notorious activism of his court, Bonichot confesses: “I have no doubt that European citizenship will come into its own in the coming years. Our children are already European citizens, roaming throughout the European Union without taking much account of regulations and directives. They see only the world in which they live, and build for themselves the future European citizen” (134).

Superficially attractive though the picture Bonichot paints here might be of a carefree European youth enjoying their new freedom to wander within it, he fails to mention or seems at all concerned by their currently being denied, as are their parents and all other EU citizens, any say at all as to what its directives should contain, or even over who may propose them.

Wood exhibits similar postnational myopia in her critical examination of the positive functions claimed on behalf of national borders. Taking issue with the claim that opening America’s borders would lead to “a flood of immigrants who would take jobs from US citizens, swamp public services, cram into sub-standard housing and commit crimes” (144), she writes:

However awful conditions may be in some places, it is exceedingly difficult and expensive for people to leave and make their way to… the United States. It is unclear how many more immigrants from Central and South America would try their luck in the US economy if the borders were open. At some point, one suspects, an equilibrium would be reached – if there are no more jobs to be had in the United States, people will stay home. (145)

Wood’s last quoted statement might well be true. However, a potential trade-off from adopting an open-borders policy toward Mexico is that, by the time any demographic equilibrium would be reached, Hispanic immigration is likely to have displaced millions of Americans from work, lowered their wages and living standards, and overloaded their schools, hospitals, roads, and other public services and amenities. Furthermore, it flies in the face of all reasoning about the law to suppose that permitting free entry into the US from Mexico would not appreciably increase the number of entrants, given how easy it is, in principle, to cross the Mexican-US border.

Differing from Wood’s analysis of open-ended immigration, Jurgen Kaube provides a much needed corrective when, in his contribution, he observes: “Let us establish some facts… By the end of 2007, 7.2 million German residents were foreigners (about 9 percent of the population). Of these, 1.7 million were of Turkish nationality” (97); “The unemployment rate for citizens of foreign countries living in Germany is 25 percent… as compared to 2.5 percent of German citizens” (100). Similarly, Robert von Rimscha injects an equally salutary note of reality in his contribution by adding the following telling details: “Turkish unemployment in Berlin is a staggering 47 percent… the dropout rate in schools for Turks is eight times what it is for ethnic Germans… 70 percent of juvenile criminals are Turks, Lebanese, and Arabs, whereas these groups make up 12 percent of the population” (104).

Europe is currently finding it very hard to integrate its large Muslim immigrant population. In his contribution, Peter Schuck explains how their continued unassimilated presence is likely to undermine the social solidarity on which its comparatively generous welfare states have previously relied. He predicts European levels of public expenditure on citizen social rights will soon decline to American levels without being matched by America’s high level of citizen patriotism.

The penultimate essay by Adam Tomkins explains how democracy in Britain has suffered by its recent turn from Parliament to the courts as the principal custodian of its citizens’ liberties. As Tomkins concludes: “It is a horrible irony that twenty-first century law, ostensibly enacted in order to enhance the protection of the rights of citizens (and others), seems to have [had] the reverse effect, undermining a core achievement of Britain’s historic, political constitution” (202).

In the volume’s final essay, Robert Gasaway and Ashley Parrish explain why it has been no accident that British democracy should have so suffered through Britain’s recent ever greater reliance upon European-style constitutionally entrenched rights. As they explain: “Every credit to the ledger of constitutionally protected freedoms is, by definition, a debit on the ledger of issues subject to democratic decision making… prodigality in bestowing enforceable rights… risks giving rise to a government, not for the people, but for the governing elites” (208).

The two authors find incomprehensible Europe’s apparent readiness to exchange hard-won democratic freedoms for the mess of pottage contained in its several charters and conventions of rights. They write: “What astounds many Americans about Europe’s current round of constitution making is its apparent departure from the European ideals of democracy they admire… that inspired America’s own founding…” (229).

Gasaway and Parrish are most instructive about how and why their own preferred form of structural originalism can account for the wise parsimony exhibited by the framers and most authoritative interpreters of the American Constitution in investing Americans with constitutionally protected rights. However, Gasaway and Parrish themselves would surely have fallen victim to the neglect into which William Galston claims the teaching of American history has lately succumbed in America’s schools, should either suppose that it was anywhere else in Europe but Britain to which these  framers turned for guidance as to what to include in the American Constitution. Practically every article in it was modeled on some British precedent, most notably the Declaration of Rights enacted into English law in 1689. That they were so influenced only serves to emphasize just how costly to the liberty of its citizens has been Britain’s recent ever closer political and judicial engagement with Europe.

Three years on from the publication of this volume, in the midst of a financial crisis threatening to derail Europe’s project of monetary union, there are encouraging signs beginning to emerge that the time may fast be approaching when Britain might choose, and some other European countries become obliged, to free themselves from the deadly incubus that has taken hold of Europe in recent decades and which threatens to instate there a monolithic undemocratic leviathan, only somewhat less oppressive than the former Soviet leviathan now safely consigned to the dustbin of history. The essays in this volume reveal, albeit sometimes only unwittingly, why, should such a development take place, it is one lovers of liberty everywhere should gladly welcome.

 

David Conway is a Visiting Senior Research Fellow at the Westminster-based social policy think-tank Civitas: Institute for the Study of Civil Society, which he joined in 2004 and where he worked full-time as a senior research fellow for five years, after leaving academia following a thirty year career teaching philosophy at various British universities. Professor Conway’s numerous publications include A Farewell to Marx; Classical Liberalism: The Unvanquished Ideal; Free Market Feminism; The Rediscovery of Wisdom; In Defence of the Realm; A Nation of Immigrants? A Brief Demographic History of Britain; and Liberal Education and the National Curriculum. This essay was originally published in January 2012 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.

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