Outside the Beltway

PARIS VS. PHILLY

James Joyner · Friday, October 10, 2003 · 2 comments

George Will believes the manifestly different worldviews of Americans and Europeans can be traced back to the the American and French Revolutions.

The American objective is to spread the American understanding of constitutionalism. It is democratic constitutions arising from the particularities of each nation’s politics, and construed by national judiciaries informed by their nation’s political and legal cultures. The American understanding, exemplified by the Philadelphia convention of 1787 and the ratifying conventions, was that constitutions are political, subject to some evolution via construing–and also, of course, to amendment.

We lose sight of how remarkable the amendment provision is: the men in Philadelphia knew that theirs was not necessarily the final word. A corollary of this philosophical tentativeness is that other democratic nations might come to different conclusions about fundamental rights.

The European embrace of international arrangements in the second half of the 20th century has been a recoil from the savagery of European history in the first half. Whereas America has a cheerful understanding of nationalism expressed through democracy, Europe has a horror of popular nationalism. Having witnessed democratic enthusiasm for the march into the 1914-1918 abyss, and having seen democratic processes produce Mussolini and Hitler, Europe sought an international constitutionalism in the spirit of the Enlightenment philosophers of 18th-century Paris.

American constitutionalism speaks, as it were, with a Philadelphia accent, in what Rubenfeld calls the language of popular sovereignty: “We the people of the United States. . .do ordain and establish. . .” American constitutionalism does indeed check democracy, but remains accountable to democracy–to elected representatives and legislatures that can amend it, and to presidents and senators who nominate and confirm the judges who construe it.

European constitutionalism speaks with a Paris accent, using the language of universal truths defined by intellectual elites and presented to publics which are expected to be deferential. Because Europeans accept some trickle-down constitutionalism, they thought nothing amiss when the European committee that drafted a constitution for Kosovo–after a three-day visit there–had no Kosovar members.

Interesting.