Entries from June 2005

Canada’s Unhappy Birthday

David Frum June 28th, 2005 at 12:00 am Comments Off

What a grim and troubling anniversary this coming July 1 will be.

Canada’s national day does not celebrate a declaration of independence (like America’s July 4), or a revolutionary upheaval (like France’s Bastille Day) or a moment of national redemption (like Mexico’s Cinco de Mayo).

July 1, 1867, was the day the British North America Act came into effect. In other words, Canada Day commemorates the creation of a system of government. That system of government is failing — and the failure is making Canadians poorer, less free and less secure.

The Canadian federal government created by the British North America Act has evolved into the least representative and least accountable national government in the advanced democratic world.

Unlike the presidents of France and the United States, Canada’s chief executive is not elected by the people at large.

Unlike the prime ministers of Japan or Israel and even Great Britain, Canada’s prime minister exercises total control of his government. He chooses his own cabinet and can dismiss members of the senior civil service at his pleasure.

Unlike the prime minister of Britain, Canada’s prime minister controls a civil service and national police force politicized by long years of one-party rule. So long as the PM is a Liberal, he can count on the bureaucracy to obey almost any order, no matter how dubiously legal.

Unlike the U.S. president, a Canadian prime minister can enforce almost total secrecy upon his government.

Unlike the prime ministers of the Scandinavian countries, Canada’s prime minister governs untroubled by a strong ethics commissioner who can decide whether or not he violated any rules.

Unlike the prime minister of Italy, he can enjoy the power of an absolute majority of the House of Commons with as little as 37% of the popular vote — as Jean Chretien did in 1993.

Unlike the prime minister of Australia or the chancellor of Germany, he need not worry about an elected and independent upper chamber defying his edicts.

Although it is true that the prime minister of Canada must contend with a dozen provincial and territorial chief executives who rule their domains as absolutely as he rules his, it is equally true that he has most of the taxing power — while they must bear the responsibility for running the programs that those taxes fund.

And as Canadians have just learned, the prime minister is no longer restrained even by the most basic and fundamental rule of Westminster-style government: the need to command a majority of the House of Commons. He can disregard a whole series of non-confidence votes — can deny a majority of the House the right even to propose non-confidence motions — and keep governing until he has reassembled a new majority by hook or by crook.

All told, the job of prime minister of Canada bears a much closer resemblance to that of, say, president of Mexico than to that of any of its First World counterparts.

Some, like my friend Andrew Coyne, hail the Charter of Rights as a corrective to the chief executive’s unrepresentative, unaccountable power. In fact, the Charter has only aggravated the problem. It has enfeebled Canada’s already feeble democracy, without placing any effective limits on the executive branch.

Indeed, one could argue that the Charter has actually enhanced the power of the prime minister. He chooses Canada’s newly empowered judges at his sole discretion, in secret, and without public discussion or debate. By subsidizing some litigants (feminist and gay rights groups) and not others (religious or property rights groups), he influences the cases that come before the Supreme Court and thus the issues it is called upon to decide.

More ominously, the Charter as written and interpreted has tended to expand rather than constrain the power of the state. There will be an election soon – but Canadians have no Charter right to buy newspaper or radio ads to express their opinions. The Charter does not guarantee private property or the right to contract, and offers only wan protection to free speech and the free press.

Judicial power has not compensated for the absence of democratic accountability. Canada’s government has grown ever more arrogant, arbitrary and corrupt. Canadian citizens in response have grown ever more passive and cynical. The Canadian economy and Canadian society have paid the price.

Over the past dozen years, Canadians’ standard of living has plunged relative to their American neighbours’. Hundreds of thousands of the elderly and sick have waited longer and longer in pain and fear for necessary medical treatments. Canada’s influence in the world has vanished, as its helicopters crash and its submarines burn. The courts have reinvented the definition of the family, accelerating the collapse of the Canadian birth rate far below replacement. Tens of millions of dollars have been stolen by operatives from the governing party, while the man who signed the cheques and now leads the party presents himself as an unknowing helpless victim of somebody else’s scam.

On Friday, the federal Liberals responsible for this ongoing disaster will go home for the day. They will attend federally funded barbecues and preen before the television cameras. And they will stand before the voters they have silenced and give speeches proclaiming Canada the best governed and most successful country on Earth.

From Supremes, An Illusory “right”

David Frum June 21st, 2005 at 12:00 am Comments Off

Is Medicare still legal? It is one of the many curiosities of the Supreme Court’s recent decision on private health insurance that Canadians do not truly know the answer to that question.

“It is emphatically the province and duty of the judicial department to say what the law is.” So wrote U.S. Supreme Court Chief Justice John Marshall in Marbury v. Madison, the case that established judicial review in the United States 200 years ago.

So what is it? Is it OK to sell private medical insurance in Canada, or at least in Quebec? That result would seem to follow from the top court’s decision in Choualli v. Quebec — but what is logical is not necessarily true.

Despite the headlines, Choualli v. Quebec did not exactly create a new right to buy private health insurance. Instead, the judgment created a weirdly conditional (and largely useless) right: When, in the opinion of a court, the delays in Quebec’s health system grow so long that they threaten the lives and health of Quebec residents, then and only then those residents have a right under the Quebec Charter of Rights to purchase some form of private insurance.

Notice please how flimsy this “right” is. It fades in and out of existence depending on the Supreme Court’s assessment of the reasonableness of Quebec’s waiting times. If those waiting times were to be reduced, then the right might vanish again. How much would they have to be reduced? Why, that’s up to the court to decide.

As a practical matter, then, Choualli v. Quebec has created not a new right for the citizen, but a new power for the judiciary. The courts from now on will supervise waiting times in Quebec and (probably) other provinces to decide whether those waits are too long. Health care used to be a shared responsibility of the federal and provincial governments; from here on, the judiciary will have to be included as third — and senior — partner.

But as for the ordinary patient, he or she remains almost as much a non-entity as ever. Over the coming weeks, there will be a huge fuss and fury over health care reform. New resources will be pledged, changes promised. The desperate and cynical Martin government will endeavour to present itself as the champion and savior of “single-tier” medicine. At the end of it all, some entrepreneur or corporation will have to make the decision whether to offer private insurance to Canadians or Quebecers. When it does so, the whole issue will have to be re-litigated from scratch. Governments will present the courts with a long list of alterations to the system, arguing that these alterations have improved matters to the point where private insurance is no longer needed to meet constitutional muster. And the courts will … well, what will they do then?

Myself, I’m inclined to think that Globe and Mail columnist Jeffrey Simpson is right (hey — it happens) that the courts will ultimately back down. The composition of the court will alter, and the judges’ nerve will falter in the face of the campaign of demagoguery about to be waged against them by the Liberal government and the left. It’s one thing to be attacked from the socially conservative right: In the law schools, that’s a badge of honour. But to be attacked by their own constituency, by their own patrons, by their own former admirers — that will be more than I think the judges will be able to bear.

So while the future almost certainly holds considerably more health care litigation, it is unlikely that the courts can be counted on to make good on their half-promise of reform. Which means that the job will fall back upon those to whom it always properly belonged: elected leaders, the media, the citizenry.

The court’s bold bid to insert itself into health care decision-making did accomplish at least one good thing: It forever put the lie to the old propaganda about “the best health care system on earth.” No Canadian politician can any longer get away with denying that Canada’s hugely costly government health care monopoly is also dangerously, lethally, flawed — and that it is lethally flawed precisely because it is a monopoly.

Sometime soon, Paul Martin will fill the airwaves with ads urging Canadians to overlook the corruption of his government and keep him in Ottawa to “save Medicare.” The Supreme Court of Canada has written the text of the rebuttal ads:

“The evidence in this case shows that delays in the public health care system are widespread, and that, in some serious cases, patients die as a result of waiting lists for public health care.

“The evidence also demonstrates that the prohibition against private health insurance and its consequence of denying people vital health care result in physical and psychological suffering.

“It cannot be concluded … that an absolute prohibition on private insurance is necessary to protect the integrity of the public plan.”

But maybe the most scathing reply to this two-faced Prime Minister came from his own lips, during the debate on second reading of the gay marriage bill on February 16 of this year: “The Charter is a living document, the heartbeat of our Constitution. It is also a proclamation. It declares that as Canadians, we live under a progressive and inclusive set of fundamental beliefs about the value of the individual.”

The surest way to demonstrate that value will be to liberate those individuals from a health care system that their own highest court has now condemned as a threat to their health and their lives.

Bad Decison, Good Result

David Frum June 14th, 2005 at 12:00 am Comments Off

The Supreme Court of Canada’s decision in the medicare case is a source of grim satisfaction. For two decades, the Supreme Court has been the tool and weapon of liberal Canada. What liberal Canada couldn’t get at the ballot box, it could count on the court to deliver in the name of law: abortion, native land claims, gay rights–anything. But, like Dr. Frankenstein’s monster turning on its maker, the tool has acquired a will of its own–and in one crucial respect, that will has begun to diverge from the wishes of its creators.

For Canadian liberals, medicare is an ideological achievement, a propaganda device and an election issue. But for the justices of the Supreme Court of Canada (average age, 62), as for many older Canadians, medicare is first and foremost a system for providing health care. Like those other older Canadians, the justices have noticed that the quality of that health care has sharply declined over the past decade. Unlike other older Canadians, the justices are in a position to do something about it.

My friend and colleague Andrew Coyne argues that Thursday’s medicare case is “far from the bold, even adventurous judgment” it has been made out to be. He’s wrong about that. The decision is breathtakingly bold.

The judges have put an end to medicare’s absolute monopoly in at least one province. How’d they get the power to do that? They cite the Quebec Charter of Rights. But as the court itself admits, the Quebec Charter–unlike its Canadian counterpart–is a law that “has no constitutional dimension.” And even assuming that the Quebec Charter has somehow evolved into some kind of super-law by tacit use and implied consent, it’s hard to see where this Charter grants individuals the right to buy their own medical insurance.

It does guarantee individuals that their persons cannot be violated except with due regard to “democratic values, public order and the general well-being of the citizens of Quebec.” But that guarantee of inviolability has traditionally been understood to be a guarantee against the criminal powers of the state–not against the incompetence of a government health care monopoly. True, bad health care system can harm or kill you. But so can bad roads, or poorly maintained electrical wires, or trigger-happy police, or tardy firefighters. Is there a right against the government monopoly over these services as well?

The majority in Choualli v. Quebec seems to have given very little thought to these hard questions. The judges heard the sad stories of George Zeliotis (the patient) and Jacques Choualli (his would-be doctor), decided that something must be done–and then did it. Indeed, what is most striking about the decision is the insight it gives into the Supreme Court of Canada’s grand interpretation of its proper powers.

Listen, for example, to Justice Marie Deschamps’ curt dismissal of the objection that the court has maybe strayed in this case beyond its proper limits:

“This is not a case in which the court must show deference to the government’s choice of measure. The courts have a duty to rise above political debate. When, as in the case at bar, the courts are given the tools they need to make a decision, they should not hesitate to assume their responsibilities. Deference cannot lead the judicial branch to abdicate its role in favor of the legislative branch or the executive branch. While the government has the power to decide what measures to adopt, it cannot choose to do nothing in the face of a violation of Quebecers’ right to security. Inertia cannot be used as an argument to justify deference.”

But of course, the government of Quebec–and the federal and provincial governments of Canada–are not “doing nothing” about health care delays. They are doing a great deal. What they are doing is useless and counterproductive, but it is not nothing. And even if it were “nothing”–why can’t democratic governments look at their list of potential solutions to a problem, decide that in every case the costs of change exceed the benefits and simply postpone the matter till later, in hope that some better answer might materialize over time? Think how many social problems are made worse by ill-considered solutions: Don’t we all wish that Pierre Trudeau had “done nothing” about inflation or high energy costs rather than imposing price controls and his mad National Energy Policy?

I say all these things as a strong and passionate supporter of the result in Choualli v. Quebec. The judges are right that Canada’s health care system is killing people. They are right that the system is an accumulating and worsening failure, that it is oppressive and unfair, and that it is held in place not by the reasoned judgment of the Canadian people but by the opportunism and cowardice of Canadian political leaders. All these things are true.

But it is also true that democracy shrivels when would-be guardians of the people assert the right to make the people’s decisions for them. When Preston Manning, Michael Harris and Michael Walker make a careful study of the health care system and propose measured and gradual reforms, they are cut down by protests. When four justices of the Supreme Court go vastly further and with infinitely less study and thought, their wishes are immediately absorbed into the conventional wisdom. It sometimes seems to me that the habit and dignity of self-government are dying out of the land. And dearly as I cherish health care freedom, the right to rule oneself is a right I cherish even more.

A Scandal So Immense

David Frum June 13th, 2005 at 12:00 am Comments Off

Mel Brooks once offered these succinct definitions of tragedy and comedy: “Tragedy is when I cut my finger. Comedy is when you fall down an open manhole.”

By that definition, Canadian politics these days might seem very comical indeed. But I am counting on Americans to be less callous than the mordant Brooks–and to recognize that the events now occurring in Canada are serious, even sinister. There is though one warning I’d better immediately deliver to readers: Along with at least four other public commentators, I have recently been served with libel papers by a leading figure in this story. Because National Review is distributed in Canada, and therefore can potentially be reached by Canada’s more restrictive libel law, I have to be a little circumspect in what I say here.

Two years ago, Canada’s auditor-general discovered that the Liberal government in power since 1993 engaged in a massive scheme of diversion of taxpayer funds in the province of Quebec. Last year, an independent inquiry headed by Judge John Gomery began to investigate the diversion. At least $250 million (Canadian) and perhaps as much as $350 million passed through the particular government program at the center of the scandal. Some of that money ended up in the pockets of influential Liberals, allegedly including the brother of former prime minister Jean Chretien. Some was kicked back to the Liberal party and its campaign workers. The Gomery inquiry has also revealed a disturbing nexus–that’s a word to which no lawyer can object–between senior figures in the Liberal party and organized crime.

Nor is this the end of the Liberal scandals. Other and even larger government programs have also failed to account adequately for the money entrusted to them. It has been alleged that Chretien pressured a government-owned bank to lend money to rescue a failing business in which he held an interest. Finally, some insiders have alleged that the current prime minister, Paul Martin, has been connected with other important abuses of power for the benefit of private individuals–and it is these allegations that have led to the recent flurry of libel actions from the prime minister’s office.

Paul Martin has always benefited immensely from his reputation as the Mr. Clean of the Liberal party. Unlike Chretien, a rough-talking populist, Martin was born to privilege. His father just missed the prime ministership in the 1960s. Young Paul was plucked by one of Canada’s wealthiest men, Paul Desmarais, to run Canada Steamship Lines–and ended up owning most of the company. Martin entered politics in 1988; he lost the Liberal leadership to Chretien in 1990, but became finance minister, eliminating Canada’s chronic budget deficits by restraining federal spending and imposing harsh tax increases on Canada’s middle class. At the end of twelve years of Chretien/Martin government, the after-tax, after-inflation income of the average family stood exactly where it had when the government took office: a dismal record unparalleled since the Depression. In 1990, the average Canadian worker took home about 90 cents for every dollar taken home by the average American. Today the average Canadian takes home about 75 cents.

And yet in 2003, when Martin at last succeeded in becoming prime minister, it was widely believed that a new era of competence and integrity had arrived. As if to demonstrate his confidence in his innocence, Martin established the Gomery inquiry–and immediately called an election. Some cynics have suggested that Martin was racing against the clock, hoping to win a majority before any of Gomery’s findings became public. If so, the plan nearly succeeded. Martin convinced many Canadians to differentiate between his new Liberals and the tainted group around Chretien. He won enough seats to form a seemingly stable government.

Then Judge Gomery took his hearings onto cable TV. Night after night, Canadians heard firsthand stories of tens of thousands of dollars in cash left in envelopes on restaurant tables, of alleged Mafia figures giving orders to party chairmen, of kickbacks, bribes, and fraud. The opposition Conservatives and Bloc Quebecois announced that they would vote together to defeat the Martin government and force a summer election. And now the great tragicomedy began. Martin needed 154 votes to defeat the non-confidence motion. He had 132. He needed 22 more. Where could he get them?

First he did a deal with Canada’s socialist New Democrats (NDP), allowing them to rewrite his spring budget, canceling $3.4 billion in tax cuts and adding $4.6 billion in extra spending in exchange for their 19 votes. That left him three short. There were three independent MPs in the House. One would surely vote with the government, one just as surely against. Two short. That third independent MP had a grievance against Conservative leader Stephen Harper; count him probably pro-government. That left Martin one short. What to do?

The first thing he had to do was trample on Canada’s constitutional traditions. The parliamentary calendar normally provides for “opposition days,” when the opposition party can bring forward motions. Knowing that Harper would move non-confidence in the government–and that the government lacked the votes to prevail–Martin canceled all the opposition days scheduled for May and June. At the same time, Martin halted all government business, because any government motion before the House could be voted down.

So far, Martin was playing rough–but still playing legal. Then, on May 10, the opposition parties found a loose bit of business on the calendar and amended it to demand that the government resign. They won that vote 153-150–but Martin declared that he regarded the vote as purely procedural and therefore non-binding. Next the opposition parties began defeating government motions to adjourn. In a Westminster-style parliament, the power to control adjournment is essential to control of the House. For that reason, adjournment motions have traditionally been regarded as confidence motions. Between May 11 and May 15, the Liberals lost three of them. But Martin pressed on. More time, he insisted, was essential: He would call an election after Gomery reported–in December, or possibly in January or March 2006–but certainly not now, no matter how many votes he lost.

And then Canadians learned the reason why: Over the period that the Martin government had been losing vote after vote in the House, it had been secretly negotiating with the disappointed loser of the Conservative party’s 2004 leadership contest, Belinda Stronach, the billionaire heiress to an auto-parts and land-development fortune. Stronach, a glamorous twice-divorced thirty-something and onetime close friend of Bill Clinton, had been carrying on a very public affair with a handsome fellow-member of the Conservative caucus, Peter MacKay. On the evening of Monday, May 16, Stronach had dinner at the prime minister’s house in Ottawa and accepted an appointment to his cabinet. Later that night, she telephoned MacKay and broke the news to him that she was deserting both him and the party.

The following day, Stronach gave a stirring statement about the convictions that had obliged her to turn her coat. Those who had followed her rather dizzy personal style were impressed to learn of the existence of these convictions, which proved to track neatly the editorial policies of Canada’s major news media. Some skeptics attributed Stronach’s change of heart to four other causes: a) a growing realization that she was unlikely ever to be chosen as Conservative leader; b) the allurements of an immediate cabinet office; c) some discreetly whispered hints that a woman like herself was exactly the right kind of person to help “renew” the Liberal party after Martin went to his well-earned retirement; and d) her anger and surprise at being dressed down by Harper for criticizing him to the national media.

Whatever the motive, she switched–and Martin’s government won a fifth and presumably final vote in the House. Soon afterward, the Liberals won a by-election in Labrador to fill a vacancy and expanded their margin in the House by another vote. With two Conservatives seriously ill and unable to spend much time in Ottawa, the Martin government could again count on a little breathing room, at least so long as the NDP stayed bought. True, the day after the Stronach maneuver another Conservative MP came forward with an audiotape in which somebody who sounded very much like the prime minister’s chief of staff seemed to offer the MP something that sounded very like a personal benefit–a consulship or perhaps a seat in Canada’s appointed senate–in exchange for his vote. If such an offer had been made, it would arguably constitute an illegal bribe.

And yet the voters seem to have shrugged the whole matter off. Since the Stronach episode, the Martin government has risen in the polls, especially in the all-important province of Ontario. NR’s Mark Steyn has bitterly quipped that Paul Martin could be captured on DVD spending $20 million of taxpayer money on cocaine and rent boys–and the polls for Ontario would still say Liberals 37, Conservatives 34. How to explain this seemingly bizarre attachment of Central Canada to a government that has raised their taxes, reduced their standard of living, and been detected in scandal after scandal? There is no short answer, but the following five together probably contain most of the truth.

First, as Peter Brimelow argued in his 1986 book The Patriot Game, the Westminster system of government has never sat well on Canada’s vast territory. The English cut off the head of Charles I for attempting to govern without Parliament, but English-speaking Canadians increasingly see Canada’s activist Supreme Court, not Parliament, as the guardian of cherished freedoms. And as political scientist Ted Morton observes, the Liberals are the Court party.

Second, most of those involved in the scandals have been Quebec politicians. It has been easy for English-speaking Canadians to shrug off the scandals as no concern of theirs.

Third, because the Bloc Quebecois joined with the Conservatives to vote against Martin, the Liberals have been able to condemn any opposition to their power as tainted by separatism. Never mind that it is the Liberals’ own corruption that has revived Quebec separatism after a long period of dormancy: Like Mexico’s PRI, the Liberals preen as the party of nationhood no matter how much damage they do to the nation.

Fourth, there is no getting around the fact that the newly reunited Conservative party has not yet connected either emotionally or substantively with the Ontario majority. Canada is a less religious country than the U.S., less economically individualist, and much more isolationist. That political landscape poses special challenges for a center-right party that wants to open Canada’s economy, reduce taxes, restore relations with the U.S., and emphasize democratic self-government rather than judicial power.

Fifth, and most paradoxically, the harm the Liberals have done to the Canadian economy has profited them politically. The 1990s were a harsh decade for many Canadian families. Only in the past couple of years have they enjoyed any kind of sustained improvement in their after-tax living standards. Bruised by this experience, Canadians have come to see any change as overwhelmingly likely to be change for the worse.

And yet, the final assessment cannot be all pessimism. The true character of Martin and his government has been exposed. The long-fractious Conservatives have been united by anger at the Stronach defection. The Liberal-NDP governing coalition is unstable. Any hope that the Liberals might once have entertained of stifling the Gomery inquiry is gone for good. Martin is committed to accepting an election no later than next spring. If this is comedy, we’ll see who laughs last.

Eutopia Is Dead. What Now?

David Frum June 7th, 2005 at 12:00 am Comments Off

LUCCA, Italy–Don’t let the dateline fool you. I’m not on holiday. On Wednesday, Dutch voters finished off the unwieldy and absurd EU constitution. That afternoon I got a hasty phone call from the organizers of a conference here in Tuscany. I had just published an article arguing that the defeat of the constitution was in fact a good thing for both Europeans and Americans–could I please fly over the next day to repeat the message to a roomful of anxious Italian politicians and journalists?

“Don’t panic” is not a very complicated message, but it’s one that Europeans suddenly seemed to need to hear. Within hours of the Dutch vote, the European airwaves filled with noisy predictions of disaster. Without the constitution, the Euro currency would collapse, the European Union would break apart, the whole continent would soon tumble from unity into chaos.

But look: The European constitution failed because Europeans did not want it. The document was a poorly drafted mess that injured European democracy by transferring powers from national legislatures to the unelected and high-handed European Commission and the unelected and even more high-handed European Court of Justice.

By contrast, Europeans do want the Euro and the European Union. Neither is going anywhere. On the contrary, the defeat of the ill-conceived European constitution offers Europe its best chance in years to solve real problems that affect real people.

Since the early 1990s, European leaders have been consumed with the (to them) fascinating job of building European institutions. Europe now has a flag, a national anthem, a song contest, and a charter of rights. European officials set policies on issues that range far and wide from the organization’s original economic purposes. They have banned the death penalty even for countries that favor it, imposed homosexual rights on countries that oppose them, and fought a global struggle to suppress genetically modified foods.

What EU officials have by and large failed to do, however, is build effective economic policies. French unemployment has hit 11% and youth unemployment surges even higher. Five million Germans are out of work. Italy has slipped into outright recession.

France and Germany ignore the debt limits they accepted as part of the deal to create the Euro currency. Their feeble efforts to reform their out-of-control welfare states have failed: This spring, a wave of strikes forced French prime minister Jacques Raffarin to abandon his proposal to end the national paid holiday for Whit Monday, a festival English-speakers may vaguely remember from the pages of Ivanhoe.

It’s not hard to describe what Europe must do to keep pace with the United States and remain ahead of China and India.

It must invest more, and so it must cut taxes.

It must raise its skill and technology level, and so it must free its universities from state control.

It must encourage its citizens to work harder, and so it must cut back on lavish pension and unemployment systems.

It must make it easier for citizens to move to seek work, and so it must eliminate obstacles to mobility, such as Germany’s crushing taxes on the sale and purchase of housing.

This agenda is easy to describe, but hard to carry out. The EU constitution was at best a time-wasting irrelevancy to this work of reform; at worst, it would have functioned as an outright impediment.

True, some reform-minded Europeans may have held quiet hopes that the unelected European Commission might somehow force reforms from which cowardly politicians recoiled. At its best, the commission has been a force for freer trade and more rational economic policies.

But the commission has bad days as well as good days, and it seems as often interested in forcing Estonia and Slovakia to push their taxes up as in persuading France and Germany to bring their taxes down.

Europe needs broad and deep institutional changes, and no unelected commissioner aware of the limits of his or her democratic legitimacy will ever dare impose such changes. Democratic societies must be persuaded to change, not forced, and it is through democratic politics that the work of persuasion must be done.

And when societies must change, the strongest motive for encouraging change is nationalism. When Margaret Thatcher advocated reform in Britain, she did not just say that Britain was falling short of its potential and must open its markets to optimize its performance. She said that Britain was falling behind its neighbors and traditional rivals, France and Germany, and that Britain must change in order to remain truly great.

Likewise, the small Eastern European countries that have most adopted the boldest market-oriented reforms were not persuaded by purely economistic welfare-maximizing arguments. Their leaders appealed to their national pride, to the desire of newly liberated lands to catch up, to stand equal, to cease being poor and backward and marginal.

Nationalism has often been exploited to justify destructive economic policies, as Canadians know all too well. But in other places and at other times, the desire to overcome national weakness, to enhance one’s nation’s importance in the world, has prodded reluctant societies to choose wise policies over short-sighted and self-indulgent ones. People have died for France–but who would accept a higher dental co-pay for the sake of united Europe?

Last week’s vote puts an end to the bizarre fantasy of one united Eutopia–and creates an opportunity for a new generation of leaders to do what their nations need to grow and thrive.
So again: Don’t panic. Europe’s leaders have tried and failed to evade their responsibilities. Now they have no choice but to accept them–and go to work.

Marianne Unfaithful

David Frum June 1st, 2005 at 12:00 am Comments Off

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.