The source of this item is T.R. Reid's The United States of Europe, (Penguin, 20040, subtitled "The New Superpower and the End of American Supremacy."
It's an eye-opener. "Mind-opener" might be a better expression. Europe 101.
While we've been watching Europe come back together from the rubble of WWII, it has made itself, in the course of half a century and counting, with our considerable help, into a Giant Trading Partner, Creditor, Owner, and Legal Force to be reckoned with.
Also a Moral Force. Because the U.S. Supreme Court in Lawrence v. Texas (2003) and Grutter v. Bollinger (2003), both cited to the EU's Charter of Fundamental Rights and the rulings of the European Court of Human Rights.
In Lawrence, Justice Anthony Kennedy noted that "the rights of homosexual adults to engage in intimate, consensual conduct" had been upheld by this Supreme Court of Europe, located in Strasbourg.
They're ahead of us in human rights.
We have a human rights gap with Europe, and they're ahead!
When the U.S. Supreme Court considered the death penalty for mentally retarded criminals (Atkins v. Virginia, (2002)), Justice John Paul Stevens noted the European legal position ("overwhelming disapproval") in deciding to ban the practice in the United States as well. Reid, pp 166, 167.
American conservatives such as justices William Rehnquist, Clarence Thomas, Antonin Scalia, and Robert Bork are appalled that we would look for moral guidance outside our own fertile breeding ground of Klansmen, Militia members, and others who seem to think America is umbilicus mundus, the moral belly-button of the whole world.
For Europeans, our death penalty equates with slavery and torture, two of our other revered traditions. Why would we want to continue to be barbarians, they wonder, according to Reid, who points out that Osama Bin Laden, America's Most Wanted, if arrested in Europe, would not be coughed up. He'd be protected. From the Americans. Whom he tried to destroy not only on 9-1l, but before and since. Europe, according to Reid, hated Pres. Bush even before Iraq, regarding him as a butcher for signing 153 death warrants as governor of Texas.
California Gov. Arnold Schwarzenegger, a native of Austria, a member of the EU, recently allowed a California state prisoner, Donald Beardslee, to be executed, via lethal injection. Governor Schwarzenegger was reported to be of two minds about it.
According to a political cartoon, which showed the Terminator with two heads on his broad shoulders, he decided to lop off his European head and allow the execution to proceed.
See? American values triumph over European once again!
I feel so proud...
Here's the EU policy on the death penalty. They're trying to get us to cut it out. They've filed an amicus brief in at least one death penalty case.
You'd think we'd listen when an outfit the size of the EU, with its bloody history, has seen the light before we do.
Can we continue to perform to a lesser standard of humanity and civilization than the Europeans?
This reminds me of the story of a Reconstruction Era president who returned the polite greeting of a black man who'd walked past his front porch.
A friend of the president asked how he would feel when the nation learned that the president returned the greeting of a Negro.
"How would the nation feel knowing that a Negro was more courteous than the president?" replied the president.
How powerful is Europe, using the word to refer to the 25 constituent countries, spanning 20 official languages (and a lot of translators)?
We're dancing to its tune.
If the American death penalty is ever to be eliminated, we'll have the New Europe to thank. Europe refuses to extradite death-penalty eligible prisoners to the U.S. The have a principle requiring them not to hand over prisoners to people who will torture or kill them. Would that we had the same. So much for our self-regarded moral superiority.
When the EU tells Microsoft to unbundle its Media Player from Windows, something the U.S. Dept. of Justice failed to achieve, Microsoft unbundles.
When the EU tells GE chairman Jack Welch that his merger with Honeywell is in unreasonable restraint of trade, i.e. too monopolistic, Welch bowed to the new reality and threw in his cards. The merger was off. See Ch. 4, entitled "Welch's Waterloo."
The European Social Model, described in Reid's Chapter 6, is of particular interest to students of constitutional law. The 14-page European Union Charter of Fundamental Rights [PDF],approved in current form on December 16, 2004, reads like a summary of our course in Constitutional Law, particularly the First Amendment, criminal trial rights, with due process and liberty guarantees. Plus considerably more.
Europeans have the right to travel, settle, work, set up a business, and receive equal social support benefits, such as health care, help finding work, pension benefits, etc., in a borderless Europe. Borders (called "frontiers") exist for 3rd party nationals, i.e. citizens of non-EU-member countries.
How are these rights enforced?
The European Court of Human Rights, in Strasbourg, which acts "something like" a Supreme Court of Europe, according to Reid,
"can and regularly does, declare laws of the separate states to be invalid, and reverse the holdings of the highest courts of the member nations.
Its mere presence, and the threat of an embarrassing ruling, tend to make the individual governments more sensitive to civil liberties than they would likely be without the court hovering over them."
And what do we call this power of a court to nullify the laws and judgments of other governmental bodies?
The Power of Judicial Review. The ECHR has it. Maybe they borrowed it from us. Shades of John Marshall and Marbury v. Madison (1803). That's a big reason why this court is "something like" our Supreme Court. This power to nullify is what makes our court supreme.
Reid notes especially the European definition of "discrimination," in Article 21, which provides the right to non-discrimination:
"Any discrimination based on grounds such as
- sex
- race
- color
- ethnic or social origin
- genetic features
- language
- religion or belief
- political or any other opinion
- membership of a national minority
- property
- birth
- disability
- age, or
- sexual orientation
shall be prohibited." (p. 165)
In case you don't think that's enough protection against unfair discrimination, Reid calls attention to the highlighted "such as," above. That's intended "to ban some other form of discrimination so abstruse that the authors couldn't articulate it."
In reading the European Fundamental Rights Charter (they don't call it a constitution, presumably because there are several "foundational" documents, covering different aspects, not just one overall, such as ours), note the express statement emphasizing protection of the individual as being the essential unit of protection, followed by the family, then the group, and then the nation, but ultimately the Union.
Individuals have a right to perpetuate their culture and language. That's why they have 20 translators, one for each language, at every meeting, no matter how few speak the language. The word must get to those who speak it.
The "Such as" clause, above, reminds of our Ninth Amendment, which states:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
When it's dangerous to make a supposedly definitive list, include a catch-all phrase to allow for others as they crystallize in our minds. Our minds rarely think of everything on the first go 'round. That's why we study, train, practice, and test so assiduously, to make up for this problem that our minds have in dealing with complex matters. What do you call this limitation, I wonder. It accounts for our entire educational effort, in all areas. Yet I can't think of a word that defines this specifically, and no other. Perhaps if we had one, we could discuss it better.
Shall we invent a word? A word that identifies this brain or mind problem which prevents us from automatically making the connection between A, which we know, and B, which we also know, but haven't related together before? It accounts for a lot of moral blindness. It also accounts for engineering problems, as well as legal.
Why were some people treated as second-class citizens under a regime that professed equal protection for all?
What about our minds, or hearts, prevented us from seeing then what seems so obvious today?
What are we missing today that will make us seem so blind tomorrow ?
Article 17 guarantees a right to "environmental protection."
Article 18 requires a "high level of consumer protection."
Article 25 assures the elderly the right to "lead a life of dignity and independence and to participate in social and consumer protection."
Article 7 provides a sweeping right of privacy.
Article 8 assures the "protection of personal data." Reid says that, "it amounts to the legal right to see any dossier maintained on you, government or private, and to have it corrected if it's wrong." (p. 164). Reid points out that "hundreds of American firms have created the new post of CPO -- Chief Privacy Officer -- or "director of corporate privacy" primarily to deal with European requirements." Reid quotes Alan F. Westin, an expert on privacy law at Columbia Law School:
"In privacy law, we went to sleep and the Europeans moved ahead.
The Europeans now set the rules that our companies have to follow."
Reid states that the antidiscrimination provision, above, has been ruled to prohibit a ban on homosexuals in the military. The rights of the child (Article 24) have been held to ban spanking in school. Children have a right to be protected and to have a relationship with both parents, absent countervailing considerations not in the best interest of the child.
As in our Constitution, rights conflict in particular situations. The Article 7 right of protection of personal privacy may conflict with Article 11, which provides "freedom...to receive and impart information and ideas." This pits movie stars and celebrities against paparazzi and gossip columnists.
Catherine Zeta-Jones, the actress born in Wales, and her husband, the director Michael Douglas, successfully sued, presumably under the Charter, for damages for the publication of unauthorized photos of them taken at the time of their wedding . They had sold the photo rights to a particular publisher, but the unauthorized publisher printed photos that showed the couple in an unflattering light, as hard as that might be to imagine, at least as to her.
The 25 signatories nations are required to waive sovereign immunity, in a provision at the end of the Charter.
This suggests that it will be useful to cite to the EU Fundamental Rights Charter in cases brought in U.S. courts. Why? Because it provides for more individual human rights than ours does. The day is coming when Europe will be more powerful than the U.S. in every field except militarily. The Europeans spend much less of their GDP on their various militaries than we do. Europe as a whole maintains the European Rapid Reaction Force, ERRF, a force de frappe, 60,000 troops at the supposed ready.
The Euro, the more or less new European currency, introduced 1/1//02, is now trading at about 139% the value of ours. We are running huge deficits in two major areas: international balance of trade (we're buying more than we're selling, internationally, by a lot) and our huge annual budget deficit, especially if we count the trillions spent on the war in Iraq.
When the U.S. deflates to less gargantuan size in comparison with Europe, the EU will be able to dictate to more people than Jack Welch. Our lawmakers, like it or not, will be conforming to what Europe wants, not just what their constituents want. Congress is already doing that, per Reid.
The citability of foreign law is what Justices Scalia and Breyer are debating at college and other forums from time to time lately.
Foreign law? What is that?
We happen to keep careful track of ideas and values, their origin, history, development, change, and applicability:
Due process? Foreign. English, Runnymede, 1215.
Equal protection? Foreign. Montesquieu, French, Locke, British, pre-1776.
Rational basis, the sine qua non to establish constitutionality in lawmaking? Foreign. Greek. Aristotle. 4-500 BCE.
Democracy and Representative government? Foreign. Greek. Athens, 4-500 BCE.
Thou shalt not kill? Foreign. Moses. Jews. Israel. 5000+ years ago.
Do unto others...? Love thy neighbor...? Foreign. Jesus. Israel. Europe, the earlier Europe. Christians. 2005 years ago +/-
Europe even provides for an Ombudsman. We have Mr. Fixit in some newspapers.
Since the U.S. Supreme Court now cites to the European Court of Human Rights, why shouldn't you?
Europe public opinion will be enjoying more and more clout when Americans tumble to the fact that we have partners to whom we cannot dictate.
Reid observes that Europe was the birthplace of "Western values," the combination of
- Individual rights
- Democratic government, and
- Free markets.
I've only provided a taste of Reid's fascinating new book, four years in the making, which drew on impressive sources including Tony Blair, the Prime Minister of England, and John Hume, the delegate from Ireland to the European Parliament in Brussels.
While I've just touched on the legal, constitutional aspect, Reid describes the history of the formation of the EU after WWII, and how EU was slowly patched together piece by piece, as the need arose, until now, there is a whole generation of young Europeans, Generation E, who regard themselves more as Europeans than as Swedes, Germans, French, or Italians.
They listen to the same music, root for the same soccer teams, and have kids together without bothering to marry. The church no longer exists in Europe, for practical purposes, based on the evidence Reid cites. It is rather a historical curiosity, a museum piece, if I'm not overstating the case, which I probably am, but not by much, it seems. The churches are empty on Sunday. 10% attendance.
Today's news shows that the U.S. Presidential Helicopter-1 will no longer be made by Americans in Connecticut, as they have been for the past half century. They'll now be made in Europe, Britain and Italy, in particular, two countries that supported us in Iraq, by a European consortium which Lockheed has joined.
Airbus, the European consortium headquartered in Toulouse, France, has outcompeted Boeing, where my youngest son, Rick, works (on UAV helicopters) in large air carriers for 550-600 passengers with the A380.
Rick spent a semester, while a student at MIT, in Toulouse at Supaero, the French MIT, where he got the tour of the huge Airbus assembly plant, "in French," he adds. Parts are made all over Europe, wings here, tail assembly there, cockpit elsewhere, fuselage, engines, interiors, etc. Almost every country has a stake.
In class I've repeated the notion that our Commerce Clause is what helped unite this country via the mutual trading interests that it promoted and encouraged. Europe is onto the game, big time, and winning. Plus they haven't cut each others' throats in sixty years, not counting the Balkans, non-EU-members.
"L'Europe qui gagne." Europe the winner.
That's one of Reid's chapter headings.
There's a price to pay, of course.
Europe's taxes are high.
But their medical care is better and covers everybody, while we have almost half the country uncovered by a health care program.
Their social model is far more "socialistic" than ours.
But ours today is so socialistic that it would make the Lochner Era Court (1905-1937) spin in their graves, along with the many who believed in Laissez-faire free-market capitalism. The few winners were called "Robber Barons." They'd sympathize with today's Right-Wing.
The New Deal, FDR's plan to save the nation from the Great Depression, which today's right-wing seeks to repeal, produced today's Welfare-State America, with rule by Administrative Agency, on which so many depend, including agribusiness and our largest corporations. Think tax breaks and farm subsidies, not to mention government contracts and special interest legislation. Corporate welfare.
We have more lobbyists in Washington...and they're not there for their health.
The American Right-Wing (ARW) hates two things, taxes and people who have difficulty surviving, because the latter costs them the former, and is no doubt too liberal, anyway. The ARW is trying to repeal the New Deal.
That's what this business about "reforming" Social Security by "privatizing" it is all about. If Pres. Bush succeeds, he'll privatize social security and after the first big market crash wiping out retirement funds, we'll have old people sleeping on cardboard until we run out of cardboard.
But at least the funds will have gone down a private toilet and we can starve assured that the principles of the republic have survived intact from the days of Alexander Hamilton and the Federalists.
The United States of Europe, by T.R. Reid, will make you appreciate what we don't have. And also what we do, since so much of the EU legal aspect seems to be a direct lift from our Constitutional law.
I suspect that a few American Conlawprofs were consulted in the drafting, and that the European law and government scholars have been paying attention to our Conlaw as it has been developing over the past several decades, at least.
When studying computer programming, it has been said that it is better to try to learn two different programs at once, such as BASIC and PASCAL, or C++, instead of just one. Why? Because you then can see two different approaches toward solving the same set of problems. The study of one clarifies one's thinking regarding the other.
Studying Constitutional Law is, as I have observed, like studying our National Operating System.
Our Constitution is a huge software program tinkered with in Washington, by their honors, The Nine Programmers.
The European Operating System is well-worth taking a look at in this light, all 14 pages of it. It's a lot simpler to read and understand than ours, and seems at least as capable of development.
The EU, incidentally, was intended as a mutual peace pact to protect against yet another bloody civil war among Europeans. They finally learned after losing generations of young men and civilians in WWI and WWII. They hate war now.
It seems to be working.
Why do we seem to love war?
We do, don't we?
You did see Patton, of course, the film where he says war is so terrible, but "God help me, I love it so." Or words to that effect. As to war, like the death penalty, we're of two minds. We can all think of instances where it's so richly deserved and we bat not an eye when it's carried out.
Maybe there are some roads down which it's better not to go, not for someone else's sake, but for our own...
As long as we're on the death penalty, among other things, here's classmate, friend, and defense attorney Bob Bloom's analysis, published in the S.F. Chronicle (1/31/05), on why none of the condemned received a fair trial: all of the anti-death penalty jurors are kicked off the jury panel before the trial gets underway. A death-qualified jury is stacked in favor of death.
***
Last evening Pres. George W. Bush, in his State of the Union Address, announced a plan to appropriate funds to support criminal defense attorneys handling death penalty case.
Why is a president who, as Texas governor, signed 153 death warrants, and who strongly favors the death penalty, personally and politically, it appears, interested in helping defense attorneys save the lives of people accused of capital murder?
Does the president have a liberal or humanitarian streak that in his second term needs attending to?
I have difficulty believing that this.
The reason, he says, is" because people on trial for their lives must have competent lawyers by their side."
Isn't that nice. Maybe some of those lawyers who bring all the class action suits that the large target defendants so hate that another presidential proposal is "tort reform" i.e., federalizing these state court actions (under the Commerce Power, perhaps, the substantial effect on interstate and foreign commerce that they represent by hurting or defrauding so many people?) president, will go into death penalty representation.
No..., I don't think that's going to happen. It's much more rewarding to go after the big bucks than to try to save one bad guy's wasted life.
The reason the president, make that the Right Wing, may be willing to stand still for a few bucks for a defense fund for dead men is more likely this: One of the big criticisms of the death penalty is that the state wants to kill people but is unwilling to spend the necessary funds to make it a fair trial. That means the death penalty should be abolished.
Oh, no, we can't have that. Why not spend the few extra bucks so we can say we are spending the necessary funds to have fair trials.
Then we can kill the bad guy and no one can complain he didn't have a fair trial.
First we have a trial, and then we kill him.
Who could complain about that?
There's a difference between a skeptic and a cynic. A skeptic is willing to be convinced. A cynic can never be persuaded. I'm willing to be persuaded differently. With evidence.
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Regarding the constitutional law of Europe, i.e. the European Union, the continuation below provides some links from the Conlawprofs listserv.
Continue reading "EU: CHARTER OF FUNDAMENTAL RIGHTS OF EUROPEAN UNION" »