Europe's draft constitution

[DemoCoder]

Well, I would have a problem enshrining the precautionary principle into the constitution. Everything I do has the potential to harm others. It's too broad.

Unpredictable effects should be covered by existing tort law. e.g. I create a new invention X, person Y gets hurt by it. These really have no place in the constitution.

The constitution should not try to enumerate all rights. It should try to list what fundamental freedoms the government is incapable of abridging. We have systems of law to cover crimes and injury.

 

[Dave H]

Glancing through, article 19 clause 2 is going to cause some serious friction between the US and Europe if it makes it into the final version:

No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

If passed this would stop extradition of the most dangerous criminals from Europe to the US. I could kill a bunch of people, hop on a plane to France and enjoy complete immunity from prosecution. And the sick thing is, the more people I killed (or alternatively, the more I raped/tortured/dismembered them in the process), the safer from prosecution I'd be, because the less credible would be any claims that I wouldn't get the death penalty if extradited back to the US.

Let's take a more specific example. It's generally assumed that, whatever form it takes, the tribunals which will be set up in Iraq to prosecute former regime leaders for crimes against humanity will include the death penalty as a possible punishment: it's accepted in both Iraqi and American cultures, and this issue is the primary reason why the US has rejected a tribunal set up under the auspices of the UN. Assume for the sake of argument that this European Constitution, as drafted, were already in force. Assume further that the Iraqi tribunals come into being and they include a provision for the death penalty.

Assume further that the report that top leaders in Saddam Hussein's regime have French passports is true. Saddam could hop a plane to Paris (or anywhere in the EU, as a French passport is an EU passport), set up shop with however many hundreds of millions of dollars he managed to smuggle out of the country, and live out his life in peace and tranquility. After all, there would be absolutely no way to guarantee he didn't face "a serious risk" of the death penalty if extradited back to Iraq. OK, he might be liable for prosecution under the ICC...but no, I don't think he would, as his crimes were presumably carried out before the ICC was created. In any case, the jurisdictional nightmares could concievably stretch on until he died of old age.

For the record, I'm against the death penalty, and I wish the US would get rid of it. But it's not going to happen anytime soon, and neither is anyone in the US going to care one whit when a bunch of Europeans try to dictate their version of morality to us. We'd be more likely to send in a commando team into Belgium to kidnap a high-profile terrorist or mass murderer holed up there than to agree not to seek the death penalty as a condition for extradition. I'm serious, by the way.

Of course, it's obvious that this article is a negotiating tactic; by including this as a fundamental Constitutional right, the Europeans can present a fait accompli to the Americans when negotiating for extradition treaties that will guarantee the extradited freedom from the death penalty. Too bad for them they're not going to get it: all they'll do is piss the US off. Nor is it clear that an extradition treaty with a foreign country would have the standing in American law to prevent the prosecutor from going for the death penalty anyways. Which of course means that even with such a treaty in place, a criminal could still claim a "serious risk" of capital punishment and escape extradition and prosecution altogether.

This is the sort of reason why you don't put implicit criticisms of other countries into your Constitution just to score self-righteous political points.

 

[Dave H]

A more general point to ruminate upon: I've heard it said that the US has the oldest continually operating system of government in the world (i.e. that set forth in the Constitution, in force from 1791 to today). I can't say definitively if this is true, as it relies at base on some difficult definitional issues. (Clearly the US is under the same system of government now as under George Washington, even though women and the non-landed have been granted the vote, the Senate has changed from being appointed by the state legislatures to being voted on in direct elections, the Vice President has been changed from the guy who came in second place to a running-mate, etc. Just as clearly, the UK is not under the same system of government as it was 200 years ago: it has gone from a "constitutional monarchy" where the monarch had to share some powers with the Parliament (particularly power over the budget and taxes), to a "constitutional monarchy" which is in fact a pariamentary democracy with a figurehead royal family for use in charity events, selling tabloids, etc. But when, exactly, did the change occur? How old, precisely is the current British system of government? And what exactly would it take for the US to be under a "new" form of government?) The narrower statement that the US has the oldest surviving constitution is, I think, definitely true.

But in any case, while quibbles might be made, the overall point obviously stands: the rest of the world may justly consider America an upstart newcomer as a nationality, a culture, or a set of borders, but as a political entity it's a hell of a lot older and more proven to be stable than the newfangled crap they've got. The reasons why are pretty obvious, and it's certainly not because the American electorate is particularly smart or visionary or sophisticated in political philosophy (although we're not as dumb as we might appear either). It's because of the Constitution. Specifically, because it is based on a couple critical principles (liberty for the people and seperation of powers for the government), limited in scope, and flexible enough to adapt to huge societal changes (without being too sensitive to passing fashions).

Of course, in a document that's over 200 years old, there are a couple rusty notes. The 3/5 rule is of course particularly creaky looking, not to mention ugly. There are a couple anachronisms in the Bill of Rights, too: some which just have no relevency to today's world (i.e. amendment 3, the right not to be forced to quarter soldiers in time of war), some which have made themselves quite controversial ("a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed").

What do all of these anachronisms have in common? They all represent specific political issues of the time working their way into a document that is supposed to be general enough to last. The lesson is to try to keep the political issues of the moment out of a constitution if you want it to last.

Of course, maybe the Europeans don't particularly care if the constitution they draft will still be going strong in 200 years. That is a legitimate position to take. If so, they seem to be on the right track...

 

[pax]

You assume the french would let such a person roam the streets of France with impunity. Any serious criminal wouldnt find haven in Europe. He most likely would be tried and jailed for life... And serious criminals dont usually go to Europe they go to south america or other easier to hide and less policed places.

I think its pretty absurd to think any war or human rights criminal would find haven in Europe. At the very least saddam or anyone in that position would find themselves in front of the international criminal court. Virtually all of europe adheres to various international human rights laws and organisations along with the obligations of interpol and the UN.

Cases where some dictators find haven like papa doc duvalier are obvious results of long process of negociation. In the case of haiti to prevent a bloodbath. Which it did.

Its not a pleasant thing but we cant take on all dictators like we did with Saddam which was a horrible risk in itself. Writing any constituion for Europe wont be easy. And Im more than secure with Europes democratic health to worry at this point about any legislation that could impeed individual freedom. Id be more worried if he US constitution were to be under a process of being rewritten right now. Like it was in 1871...

 

[DemoCoder]

Numerous articles have been written about the flawed Iranian experiment. The attempt to build a democratic theorcracy eshrined by constitution. Eventually, the paradoxes involved magnify, and eventually either one or the other is going to be thrown out.


Europe is attempting a similar flawed experiment: They are attempting to build a constitution that simultaneously enshrines individualism and collectivism. This will fail, for there is a fundamental contradiction between the two. One of them must have primacy (in US, it is individualism)

Collectivist "rights" are mere legal entitlements, exceptions that we tolerate to the principles of individual freedom. For example, taxes, social security, free education, these things are neccessarily evils, permitted because the alternative right now to not having them is worse.

But these are not enshrined as inalienable rights, and indeed, they are not inalienable. Social security can be altered, discontinued. Education could be market based, and hence, unfree. Entitlements are subject to means test -- whether they are needed.



Remember, 200+ years ago, the US created a much simpler constitution, and today those amendmants are used as powerful mechanisms in court cases. Even single words (see second amendment) that are written incorrectly have repercussions 200 years later.

This EU constitution is filled with stuff that could cause serious problems 50 or 100 years from now, because no one realized that one of the articles could be interpreted in a certain way.


For example, what will the EU constitution mean for the future of medicine 100 years from now, where gene therapy might be argued to violate the cloning or eugenics clauses, loosely interpreted.

The US constitution refers to mainly timeless rights, like speech, mobility, etc. Talking about specific things like cloning or data privacy might seem as archaic 50 or 100 years from now as the provisions in the US constitution for court cases over $20.


Since the constitution is the FINAL authority in all justice cases, it should be kept as simple as humanly possible to avoid unneccessary understandings or complications later.


In the realm of computer security, we know all computer code has bugs, so computer security gurus argue that the more powerful the program, the fewer lines of code it should be written in, because the fewer lines of code there are, the lower the chance of a bug, and simpler constructs are easier to debug and understand.


Keep it simple stupid.

 

[Sabastian]

Keep it simple stupid.

I couldn't have said it better. The logic of a massive ambiguous constitution is fundamentally flawed. Egalitarian philosophies look for and require more and more human rights that require the state to make amends for a perceived discrimination or infringement on a human "right". Constitutional implements can invoke government policy like Affirmative Action a most discriminating governmental policy. One can only imagine the claims against the state in a unified Europe, what a mess. Such a variety of potential minority groups all vying for the state to make up for perceived social injustice. I can only envision Europe under this constitution as one massive welfare state. Oh I pity the detractors of such a regime.

Keep it simple.... stupid. A massive constitution like that will be in constant disarray IMO. The state providing for one group while discriminating against others on and on. In Canada after we implemented our constitution the effects on government policy came much quicker then 50-100 years. In a matter of 10 years judges had already supplanted elected officials on so many issues. Instead of the elected government making laws it is now a movement to judicial law making. But even judges very much regret being in this position, but sense spineless politicians rather defer responsibility to the courts over issues such as abortion we are not able to effect our own governments social policies. This is totalitarianism via judicial rule.(I draw a direct parallel here with Plato’s republic and Plato’s imagined philosopher kings.) The more that judges make rulings the less powerful our own government and people are to manage their own social affairs. Once a ruling is in place it is set in stone and difficult to change. The sad thing is the process doesn't end with a few rulings ..... it goes on and on it is a bloody social engineers/social activists wet dream.

But all of this is very much along the lines of the left wing Social Democrats and egalitarian mentalities that seem to be so prevalent in Europe and it is a direct derivative of socialism/collectivist mentalities. My “rants†(as they have been called.) that rail against this sort of state social intervention via judicial rule are simple critical observations of exactly what is occurring on a large scale….. but people seem oblivious or don’t care because it is too politically oriented … and what a shame they feel that way. Social “Democracy†will in the end kill democracy and there really won’t be a difference between rival political parties as they won’t have a legal right to implement policy that runs contrary to a judicial ruling as well as the constitution. Ironically the logical end to “Social Democracy†is the end of democracy and the infancy of a real socialist state that controls every aspect of your life from cradle to grave. From what I have read of this constitution, all the composites for that to become a reality are there.

They are attempting to build a constitution that simultaneously enshrines individualism and collectivism. This will fail, for there is a fundamental contradiction between the two. One of them must have primacy (in US, it is individualism)

lol, [sarcasm] where do you get this stuff Democoder??!![/sarcasm] Real individualism and collectivism are like fire and water. In earnest human rights was supposed to be about individualism. But what is going on is not individualism or anything remotely close to that. What we have are special interest groups making rights grabs in court rooms. Large collective groups not individuals. Further the legal action usually results in some sort of “positive rights†being created for that group. I don’t think that the creators of even the US constitution envisioned such abuse of the document.(BTW I hate to use the term “positive rights†as I see them very much as a bad thing or negative.. heh on that same token “negative rights†such as freedom of speech and so on I view as very good/positive lol .) I suspect that in a highly moral civil society such as was in place when the US constitution was created self government was more of a going concern. Today however there is a move to less individual responsibility and a constant unrelenting push by the left for more and more intervention in the individual lives of all. Individual morality is at a all time low with the fall of the church and family unit, to maintain order the government is moving in to fill the gap, unfortunately. This lends society to notions of collectivism (yes even in the US democrats are making inroads, just not as quickly as in other places, like Europe for example.) More government means more taxation (just ask the Swedes.) more taxes mean less individual freedom in terms of being financially responsible for ones own well being. The less responsible we are for our selves, families and children creates a situation where the state will be and result in less liberty and individual freedom. (Slave, too the state.) Social Democracy is Socialism in sheep’s clothing.

 

[Dave H]

pax-

I know Europe doesn't want to be a haven for criminals; I was being a bit facetious. But only a bit. The point is, that clause, if enacted, is going to cause some big problems with any case involving extradition to the US. Perhaps the trouble could be avoided if the US plays along and codifies into law that we will not execute any prisoners extradicted from the EU.

Fat chance. It's pretty obvious this clause is in there only as a subtle Fuck You to America. Hopefully EU-USA relations will have improved a whole lot by the time this constitution is ready to be ratified, but I can only imagine the play this would get on American cable news if it were up for ratification now. And even if this issue managed to slip under the radar screen it still wouldn't have a chance of getting any consideration from the American government, particularly the Bush administration.

And seriously: if I were to kill a bunch of people and jet off to Paris, what could France do? They can't arrest me and charge me with anything; they have no jurisdiction. This clause protects me from extradition--from my brief perusal of the draft, it appears (correct me if I'm wrong) that the rights included are granted to anyone legally in the EU. As far as I can tell, the only thing they could do is bust me on a visa violation, which would mean waiting 3 months for my tourist visa to run out. And if I were there legally--had a work or study visa, or were actually an EU citizen--I don't think they could do a damn thing.

As for Saddam, yes, I'm sure they'd find a way to charge him with something. But I'm not sure at all that it would make it to trial. I don't know the details, but I'm fairly sure the ICC's jurisdiction doesn't extend further into the past than when it was created, which cuts out the vast majority of Saddam's really bad things (e.g. genocidal campaign against the Kurds in 1987-1989, genocidal campaign against the Marsh Arabs in the mid-90's, indiscriminate mass executions of Kurds and Shia in 1991). Plus I'm not at all sure it even covers events in non-signatory countries, a group which includes Iraq; otherwise, America staying out of the ICC wouldn't protect any American who happened to set foot in Europe, which I don't think is something we'd be too fond of.

I know Europe doesn't intend to be the next big haven for international mass murderers. Point is, with the right not to be extradited enshrined in the Constitution, I don't think they would have much choice.

 

[CosmoKramer]

Dave H: What you are talking about is already in effect since years back in several EU countries. Sweden, for example, will not extradite criminals to the US if they risk the death penalty.

 

[L233]

Dave H: What you are talking about is already in effect since years back in several EU countries. Sweden, for example, will not extradite criminals to the US if they risk the death penalty.

Same for Germany. Germany is not even allowed to provide the US with information or evidence if it can be used to sentence someone to death. This is already causing some friction in the case of Massoussi or whatshisname. They're currently trying to find some way around this or some loop-hole. We'll see.

 

[Moffell]

Actually ALL EU members won't extradite someone who faces a possible death penalty, this goes for all the newcomers as well. And I don't think this has caused any major rumblings between EU and USA for last couple of years other than US media acting all high and mighty on a few occasions. No biggie.

 

[DemoCoder]

I got an idea then. Have them tried in the US, but let the EU pay the life imprisonment prison costs. If he ever escapes an EU prison, EU nation states are liable to pay damages.

Satisfies the notion that people should be tried by a court in the locale in which they committed the crime, but the EU gets to have their way by having the scumbags locked up in EU prisons for life funded by EU tax payer dollars.

EU assumes the responsibility that if they harbor a criminal and that criminal escapes to commit more crimes they are liable for damages.

 

[fbg1]

This lends society to notions of collectivism (yes even in the US democrats are making inroads, just not as quickly as in other places, like Europe for example.)

If you had said that fifteen years ago, I would agree. However, today in 2003, it is the conservatives and libertarians who are making inroads in the US. Witness, in 1994 the Republicans took Congress and dismantled welfare, blocked Hillary's socializtion of medicine in such a way that it will be difficult for a Democrat to even propose again in the foreseeable future, and among other things got it into the general zeitgeist of the nation that smaller, less intrusive government is good. Bush is currently pushing his tax cut not just on economic grounds, but on moral grounds as well - "people should keep what they earn", etc. Conservative/Libertarian radio talk shows rule the radio waves, while Conservative/Libertarian Fox News channel is the most watched cable TV network in history. And on the web, the Drudge Report is the most popular news site (without whom the world may never have heard of Monica Lewinsky). Liberals and Statists here are in an uproar b/c they have lost control of the popular media, and they are blaming it on the increased corporate control due to media deregulation. However, what they conveniently ignore is that the popularity of conservative media strictly adheres to the economic laws of supply and demand. Big corporations are not forcing this down peoples throats, rather they have simply discovered what people want to hear and are giving it to them to make profits. More consistent listeners = sell more ads = more profits. Rush, Hannity, and O'Reilly simply pull in more consistent audience than Donohue & Co. What is remarkable is that this sea change has come along despite liberal statist control of the American public education system and the Dept. of Educations's censorship of textbooks and deliberate dumbing down of our schools. If any trend is apparent in America, it is the opposite from that which you observed.

 

[pax]

Certainly if the EU has those ideals it will pay to keep those criminals in jail. We already do that in Canada. But havent become anymore a haven than some might think Europe might become. It remains to be seen if that will happen. Canada has been technically a legal haven for decades and I havent seen any issue but its probably because for some reason when psychos are on their killing spree and or lam they dont think they will be caught. Thus they rarely seek havens in the first place.


As for the paranoia about any law that protects 'groups' its really nothing more than individuals wanting protection from other individuals. We shouldnt be afraid of that. And in any democracy you have to expect this as natural political expression. Pretty much a fantasy that we will return to either some crass form of communism or some kind of pure individualism of some libertarian ideology. Neither work. And democracy even if it became for a time expunged from legal daily life will always be there to counter either abusive forms of the fringes...

 

[Mark Cicero]

Convinced that, thus "united in its diversity", Europe offers them the best chance of pursuing, with due regard for the rights of each individual and for their responsibilities towards future generations and the Earth, the great venture which makes of it a special area of human hope, -- Preamble

I think this is where some of the problems are arrising. Cloning has issues of property and living rights involved in it. Are bodies grown for parts 'alive'? This could also change the value of children in future generations -- "Ewwww! You were born? I am so not sleeping with you!"

To make a very generalized statement (because this is now the fourth time I've written this entry -- damned lotus notes and your memory hogging idiocy) Continental Europe has long been the home of group rights holding a bit more importance than individual rights especially in France and Germany. It will be interesting to see where some of the countries that are now getting close to entry, the so-called 'New Europe' of the former soviet bloc, take to these more socialistic ideas and how far into the process they allow them to go.

As for the 'how long has England been a country' question someone asked earlier, well that depends on what you consider the starting item.

• *Magna Carta -- 1215 -- "Establishes" parliament but the representation is limited to Barons
  *Henry VII -- 1485 -- First king after the war of roses and starter of much of the succession issues in later years, expanded the admission to parliament
  *House of Commons (somewhere in here, I can't remember if it existed before the war of the roses or not)
  *James I (and VI of Scotland) -- first King 'asked' by Parliament to reign
  *Charles I/Oliver Cromwell -- 1642 - This is the first time the king literally became a figurehead (sorry)
  *Charles II -- 1660 - Parliament decides to accept a king again
  *William of Orange -- 1689 - Parliament invites him to take over from James II and sets off a constitutional crises not technically ended till the Stuarts let go of their rights to the English throne (the current says it never extended to the scottish) at the beginning of the world wars
  *Various Date in the twentieth century -- Universal suffarage for men thanks to the chartist, universal sufferage for women thanks to feminists, the war, and more feminists

 

[L233]

I got an idea then. Have them tried in the US, but let the EU pay the life imprisonment prison costs.

Hey, I got an even better idea. If the USA want something from the EU they better play by the EU's rules. The same would apply vice versa.

Hope that much common sense does not collide with your American ego.

 

[DemoCoder]

I got an even better idea. How about when someone who is not even a citizen of your country commits a serious violent offense on another country's soil and he flees to your land, he is returned to the country where he committed the crime for trial. How about the fact that you have no right to harbor a fugitive and don't have any jurisdiction to try him for crimes he didn't commit in your country.

The alternative is to get rid of extradition treaties all together. We have a constitution which says that a sentence is to be handed down to a defendant by a jury of his peers. The EU has no right to dictate to these juries what sentences they can and cannot impose. Only our constitution and supreme court has that authority. What is the judge suppose to announce to the jury in court? "Now it is time to go and deliberate on the sentence, however, Lichtenstein has dictated that you are not to impose capital punishment..."

There is a big difference between granting asylum to political refugees and granting it to rapists and serial killers. But you know, it's fine by me, since according to the new EU human rights charter, I might be a criminal, so it's good if we get rid of our extradition treaty with them.

 

[Dave H]

Actually ALL EU members won't extradite someone who faces a possible death penalty, this goes for all the newcomers as well. And I don't think this has caused any major rumblings between EU and USA for last couple of years other than US media acting all high and mighty on a few occasions. No biggie.

Huh. I'd heard about it causing potential issues in a case or two (regarding Al-Qaeda suspects in IIRC France), but always assumed it was just political sensibilities that could be negotiated around, not something enshrined into law.

Well, guess I was wrong about the consequences, although it certainly seems like something some American fugitive would take advantage of at some point...

 

[Moffell]

Well, with the risk of being a bit cynical, US has had an interest in making France look bad and anti-American lately. This should fit the bill quite nicely don't you think?

 

[Humus]

I got an even better idea. How about when someone who is not even a citizen of your country commits a serious violent offense on another country's soil and he flees to your land, he is returned to the country where he committed the crime for trial. How about the fact that you have no right to harbor a fugitive and don't have any jurisdiction to try him for crimes he didn't commit in your country.

The alternative is to get rid of extradition treaties all together. We have a constitution which says that a sentence is to be handed down to a defendant by a jury of his peers. The EU has no right to dictate to these juries what sentences they can and cannot impose. Only our constitution and supreme court has that authority. What is the judge suppose to announce to the jury in court? "Now it is time to go and deliberate on the sentence, however, Lichtenstein has dictated that you are not to impose capital punishment..."

There is a big difference between granting asylum to political refugees and granting it to rapists and serial killers. But you know, it's fine by me, since according to the new EU human rights charter, I might be a criminal, so it's good if we get rid of our extradition treaty with them.

I have the über idea of all times ... how about waiting for something closer to final before going all nuts over it?

As for your idea .. since your country doesn't follow those principals themself, why should the EU? You're holding loads of citizens of other countries inprisoned and many have been inprisoned for several years without a trial and the US obviously don't give a shit about that other countries are pissed about it. There is for instance currently since one or two years a Swedish citizen inprisoned by the US on Cuba. I don't know how many times the Swedish government has requested that he be sent to Sweden for a trial here, but without a response, or something like bla bla security bla bla oh so wonderful patriot act bla bla Al-Qaida bla bla.

 

[DemoCoder]

Well, there is a difference. Did the Swede commit the crime on Swedish soil?

The only court that has jurisdiction (if your talking about Afghan mercenaries) would be Afghanistan, so either their court gets to try him, or by proxy, since US is currently rules Afghanistan, and since the entity he committed the crime against is the US, they have the right to try him.


I am talking about a prime directive. Years ago, some American teenager in Singapore destroyed a bunch of property and did graffitti. The sentence there is to be beaten by a cane. Americans view 50-80 lashes from a staff to be "cruel and unusual punishment", however, most people agreed with the principle that if he committed the crime in Singapore, he must be punished according to their legal system. It is assumed that if you travel to a foreign country and commit a crime, you know their laws.

Another incident happened in Saudi Arabia, where Sharia rules. Some guy shop lifted there, and the punishment for stealing is amputation of the hand and foot.


Imagine that the US doesn't feel selling people's personal data is a crime and that imprisonment for such a crime is "cruel and unusual". Imagine a criminal in the EU who takes 1 million records of people and sells them for millions of dollars. He then flees to the US. EU tries him in abstenia and convicts him, sentence to 10 years in jail.

The US refuses to extradite him, they believe in capitalism and that the guy did nothing wrong he should be put into jail for 10 years for. The US govt grants him asylum.

Do you think this is fair to the citizens of Europe?