European federation or confederation?

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In a July 2015 interview for ContreTemps, translated for Verso Books by David Broder, Étienne Balibar states the following:

[…] we have to invent a form of federalism that has no real historical precedents, one that could correspond to this new stage in the evolution of our societies: the passage from the more or less complete independence of nation-states to an interdependence and a shared sovereignty. The possible contents could be different.

[…] Far beyond the current limited prerogatives of the European Parliament, there needs to be an expression and a constituent power of a democratic type at this supra-national level. That amounts to saying that we have to envisage not a confederation of states, but a complete political construction – that of the peoples of Europe and their citizens.

I strongly recommend Mr. Balibar’s interview. His insights are invaluable. That noted and while I generally agree with his views, I will have to point out what I consider to be a certain tension in his afore-quoted statements, in particular as concerns his disapproval of a confederation in juxtaposition to his endorsement of confederalist claims on “shared sovereignty” and “peoples of Europe and their citizens”.

Let us start from the latter phrase. If interpreted literally, the statement “peoples of Europe and their citizens” appears to posit the existence of two distinct entities. From an historical-cultural standpoint, that is a valid distinction, as a given people transcends the temporal presence of any given body of citizens. There can be a people that has no citizens (having no democracy), while there cannot be a citizenry in the absence of a people. Couched in those terms, “the people” is perceived as permanent and immutable, while “the citizens” are considered as derivative and transient.

From a constitutional perspective, such a bifurcated conception of a group of humans can only be meaningful if it entails the substantiation of two distinct constitutional subjects, i.e. two sovereign-will-bearing-will-forming entities: (1) the people, (2) the citizens. This dualism means that, in a very concrete way, the capacity for sovereign will-formation of each of these entities must be made manifest in a constitutional object. To consider both “the people” and “the citizens” as constitutional subjects, implies the following:

  1. each has an independent constitutional presence;
  2. independence of this sort, ramifies to the constitutional order, i.e. must somehow be expressed qua sovereign in the formation of a state entity;
  3. for both categories of sovereignty to be reconciled, a compound of states will have to be formed, constitutive of the state of the people and of the state of the citizens;
  4. the resulting constitutional order, the combination of constitutional subjects and objects, is a compound state: a state of states, a federation of states, or perhaps a federation of federations, which actually means a confederation even if never labelled as such.

Furthermore, to guarantee heterarchy (non-hierarchy) the meaning of “the citizens” must not be interpreted as suggesting a derivative, secondary constitutional subject. If hierarchy is instituted as such, then the confederation prioritises the interests of the [nation] state that represents the “permanent” people rather than the state representing the “transient” citizens.

A hierachical constitutional order that places the ostensible permanent will above the transient will, is necessarily excluding a range of interests/policies from everyday political experience, insulating it from temporality-confined autonomy. It thus creates heteronomy commensurate with the number and degree of those issues that are vested in the permanent state, in the specific sense that the citizens have an aspect of themselves be given a sovereign capacity of its own.

My premise for that claim is that unless we are deliberately deluding ourselves, at any given point in time, the citizens of a people cannot be physically separated from “the people”. They are the same. In that respect, it is highly questionable why a transcendent entity outside the citizens—the people—must be exalted to the status of a constitutional subject that has and exercises a sovereignty of its own. The only reason for proceeding thus, would be to perpetuate a status quo: the very presence of the peoples as they are currently understood and qualitative parameters thereof.

The hierarchical order, when considered at a European level, would assume as permanent the nations of Europe qua nations in the traditional meaning of nation-states. Towards that end the compound European state would be a federation of nation-states, a confederation writ large; a confederation designed to preserve the perceived immutability of its constituent nations.

Why do that, when we can think of far more progressive and modern ways of organising our common European polity? Why remain trapped in the rationale of 19th and 20th century nationalism, by adopting a world-view of permanence in an actual world of flux? I see no reason why a European Democracy, operating as a genuine federation, cannot find ways to organise its constituencies in a trans-border, [macro-]regional fashion, in accordance with evolving needs and context-specific requirements. Why should, for instance, the area from Luxembourg to North Rhine-Westphalia be necessarily treated as an expanded territory belonging to a handful of nations, rather than a region with many commonalities within the broader European polity?

Because I do not really want an anchor in the past, I have to disagree with the “federation of nation states”. I think heterachy can be achieved in a far easier way, without involving the constitutionalisation of nation-states at the European level. We have the European citizens. They participate in elections at the local, regional, national, and European level. At each of these levels, they remain the same, continuous constitutional subject which performs different functions of legitimation: legitimising local, regional, national, and European authority.

When it comes to the European level, there will be a Congress, a bicameral legislative body, consisting of a House of Representatives and a Senate. The former will be made up of representatives from the constituencies, with each electing a number of deputies in accordance with demographic criteria. The latter, will be composed of senators that represent the states/regions, with each state/region having the same number of elected representatives. That guarantees a certain harmony, the combination of the good of the place with the good of the space, so that no particular region can, by virtue of its sheer numbers, have a dominant position in the polity—that would risk rendering the European Democracy a majoritarian regime.

Given that both chambers of the Congress will be elected by citizens, we witness two democratically legitimate bodies that reflect two distinct functions of a single constitutional subject: the citizens. The heterarchy between the two chambers is reflecting the equal status of the legitimation process peculiar to each.

In light of the above, I also consider “shared sovereignty” to be a nebulous notion that can be interpreted as signifying a confederation of sorts. Regular readers are already aware of my analysis clarifying the misconception of the Economic and Monetary Union’s presumed shared sovereignty. The euro is a system of shared responsibility, which debases the characters and scope of republican life in all of the Member States without compensating it with a system-wide, European democracy/sovereignty.

When we consider a given federation, say, the United States of America, we treat it as a sovereign entity, but we do not have to think of the American citizens as enjoying some “shared sovereignty”. They are sovereign in a uniform fashion—the body of citizens does not need to share something with itself. By the same token, we may just be straightforward, drop the “shared” and speak of Europeans as sovereign, the European Democracy (the federation) as sovereign.

These are theoretical issues. Admittedly, the possibility of them being realised is rather remote. As I have already analysed, the same applies for any kind of a European republic, including a confederation, so we might as well discuss the constitutional aspects of an entity-yet-to-be, while also acknowledging that any given polity can be evolved and configured to meet the needs of the present: the needs of actual people in a globalising, ever-changing world.