Sovereignty and Democracy

A “european convention” chaired by former French President Valéry Giscard d’Estaing recently finished drafting a new constitution for the European Union, but the parallels with the Philadelphia Convention of 1787 that this inevitably conjures up for American observers are extremely misleading. Anyone who expects the current debate over European unification to mirror the historic contest in the United States between Federalists and Anti-Federalists is quickly disabused. That was an argument about the proper locus of sovereignty and the appropriate scale of the state. Politicians can sometimes be heard voicing such concerns in Europe today, but in scholarly and intellectual circles the predominant tendency is not to argue about where sovereignty should be lodged, but to call into question the concept of sovereignty; not to argue about how big the state should be, but to wonder about whether the era of the modern state is coming to an end.

This may seem odd at a time when the modern state seems to be enjoying the hour of its greatest triumph. Virtually the entire world now consists of independent states, their number greater than ever before. And the most important global institutions, beginning with the United Nations itself, are intergovernmental organizations whose members are states, represented by the delegates of their governments. Yet there is no denying the fact that in many quarters, especially in some of the advanced democracies, there is a widespread feeling that the modern state is becoming obsolete, that it is increasingly incapable of responding to the problems of the contemporary world, and above all to the challenges posed by globalization. It is this feeling that shapes the moral and political context in which European unification is unfolding. In one sense, of course, the eu is merely a regional organization, but the debate over its future is intimately bound up with the issue of globalization.

Globalization is a subject on everyone’s lips today, not just in Europe but around the world. I am inclined to believe that recent advances in telecommunications technology and in the internationalization of markets have created a greater degree of mutual interpenetration among societies worldwide than ever existed before. But the trends that are summed up by the term “globalization” are not new. Following the rise of multinational corporations and the oil price shocks of the 1970s, many observers called attention to the idea of international “interdependence.” And some scholars have plausibly argued that there was greater international openness and mobility during the period prior to World War i than there is today. In my view, what is distinctive about the current discourse on globalization is the jaundiced view that it takes of the modern state. After having long been regarded as the culmination of political evolution and the indispensable framework for freedom and democracy, the state is now often seen as a historically contingent institution built on shaky moral foundations.

Deconstructing the state

One of the scholars who appears to have been especially influential in shaping current thinking about the modern state is John Ruggie. Fittingly enough, Ruggie not only is a distinguished professor of international relations, but has recently served as assistant secretary-general of the United Nations. His writings, and especially his International Organization article “Territoriality and Beyond: Problematizing Modernity in International Relations” (Winter 1993), are widely cited not only in the academic literature but also in more policy-oriented discussions regarding the future of the European Union. What Ruggie “problematizes” in his essay is not just modernity, but the modern state and the concept of sovereignty.

The discipline of international relations tends to take for granted the “modern system of states,” Ruggie argues. Thus, while it is adept at understanding changes in the balance of power among states, it is poorly equipped to understand the more momentous kind of transformation that may result in “fundamental institutional discontinuity in the system of states.” Yet there are signs that such a period of “epochal” change may now be upon us. This is seen both in the transformation of the global economy due to ever more extensive transnational links and in the rise of the European Union, which “may constitute nothing less than the emergence of the first postmodern international political form.”

Ruggie’s essay includes a brief account of the debate about postmodernism in the humanities, but for the purposes of international relations he distinguishes the modern from the postmodern in terms of their different “forms of configuring political space.” The modern system of rule is based upon “territorially defined, fixed and mutually exclusive enclaves of legitimate domination. As such, it appears to be unique in human history.” How else has political space been configured in the past? Ruggie refers briefly to primitive kin-based systems and to the conception of property rights held by nomadic peoples, but by far the greatest part of his analysis is devoted to the “nonexclusive territorial rule” that characterized medieval Europe, with its complex patterns of multiple allegiances and overlapping jurisdictions.

It is by analyzing the earlier transformation of the feudal order into the modern world of states claiming absolute and exclusive sovereignty over their territories that we can gain insight into the new transformation that may now be under way. The modern state has been invented or “socially constructed,” and thus its persistence cannot be taken for granted. In fact, the European Union, where “the process of unbundling of territoriality has gone further than anywhere else,” may point the way toward a postmodern future that will in important respects resemble the medieval past.

The general orientation of Ruggie’s analysis is reflected in a great deal of contemporary writing about sovereignty, the nation-state, and the European Union. (To be sure, Ruggie draws upon a body of prior academic studies, most notably the work on the formation of the modern state prominently associated with Charles Tilly.¹) One encounters in this literature surprisingly frequent references to the fleeting and historically contingent character of the modern nation-state. And the European Union is most often described not as the germ of some larger form of the nation-state (often disparagingly referred to as a “superstate”) but as a new kind of postmodern or “neomedieval” structure that transcends the “Westphalian” framework.

Yet while Ruggie’s argument incorporates a number of useful insights, I believe that it is misguided in several crucial respects. The first is an overemphasis on the wholesale uniqueness of the modern state. It is true that the modern state differs in some ways from all previous political orders, and its persistence, despite its current worldwide predominance, should not simply be taken for granted. Yet the fact that the modern state is new is sometimes elided into the view that the division of the world into separate political orders is also something new. Ruggie’s assertion that an order based upon “territorially defined, fixed and mutually exclusive enclaves of legitimate domination . . . appears to be unique in human history” is, I believe, simply wrong.

Analyses like Ruggie’s that hold that the modern state was invented or constructed tend to take the feudal Europe that preceded it as a more gradually evolved and thus somehow more natural and less arbitrary form of political order. They do not consider the possibility that the feudal order, shaped by the universalist claims of pope and emperor, was itself a radical departure in human history, occasioned by the rise of Christian revelation. But this is surely how feudalism was viewed by the theoretical founders of modern politics.

The notion that the earlier transition from feudalism to modernity somehow supplies the key to understanding the coming transformation to a new system that will transcend modernity recalls the doctrine of Karl Marx. And as is also true of the Marxist schema, Ruggie’s perspective has very great difficulty fitting the ancient world into its analytical framework. Most such contemporary approaches, including Ruggie’s, do not even try to account for classical Greece and Rome; they simply ignore them. Willful neglect of the ancient city is, in fact, a striking feature of this entire literature. One can read histories of the state or of international state systems that deal with primitive tribes, nomadic peoples, the Chinese Empire, ancient India, and the Islamic world but do not even have an entry in the index for ancient Greece. This is especially odd, first, because the cities of ancient Greece certainly constituted a system of political units based on “territorially defined, fixed and mutually exclusive enclaves of legitimate domination” and, second, because part of the inspiration for the creation of the modern European state unmistakably came from the rediscovery of ancient political thought and practice.

After all, even medieval political thought was decisively shaped by the recovery of the works of Aristotle. It is true that early modern thinkers like Machiavelli and Hobbes openly attacked classical political thought and sought to create or to justify a political order that would differ in crucial respects from the ancient city; yet a major aim of these founders of modern political philosophy was to recover the autonomy and supremacy of political life that had characterized classical Greece and Rome. Machiavelli’s most comprehensive work consists of discourses on Livy’s history of Rome, and Hobbes’s earliest published writing was a translation of Thucydides’s history of the Peloponnesian war. Moreover, the peculiarly modern doctrine of sovereignty first developed by Bodin and Hobbes, however it may differ in other ways from the classical understanding, agrees with the Aristotelian view that the political order is the highest association or the supreme community — at least in the sense of not being properly subject to any external power.

The focus on the medieval world and neglect of the ancient in the literature to which Ruggie’s essay belongs tend to be paralleled by a lack of concern with the issue of self-government or democracy. Those who write approvingly of the Holy Roman Empire as a model for Europe² or praise the diversity and permeability of borders in the “pre-Westphalian” era do not appear to reflect on the human consequences of those arrangements. It is not mere happenstance that the feudal period was a time not only of disorder but of oppression and severe inequality. An absence of firm borders and of clear lines of jurisdiction may not be a problem in empires or other political forms where governments are not accountable to their citizens. But if the citizens are to govern, or at least to hold their governors accountable, it must be clear who is and who is not included in the polity. And it is hard to see how this can be accomplished without clear lines of demarcation indicating whose voices have the right to be counted.

There is more than a merely verbal connection between the modern concept of sovereignty and the contemporary idea of the sovereignty of the people. Notwithstanding the fact that Bodin and Hobbes were champions of monarchy, it is their doctrine of sovereignty that prepared the way for the notion that all political power ultimately derives from the consent of naturally free and equal individuals. It is the modern nation-state that provided the indispensable framework for building a political order that protects the rights and heeds the voices of all the people who belong to it.

Two of the leading contemporary scholars of democracy, Juan Linz and Alfred Stepan, affirm the necessity of this link with particular forcefulness: “[W]ithout a state,” they argue, “no modern democracy is possible. . . . Modern democratic government is inevitably linked to stateness. Without a state, there can be no citizenship; without citizenship, there can be no democracy.”³

Democracy without sovereignty?

What, then, is the attitude toward democracy of those who proclaim the obsolescence of the nation-state and welcome the erosion of the “Westphalian” notion of sovereignty? While there are some who ignore or are indifferent to this question, it would be inaccurate and unfair to claim that this is the general view of the champions of transnationalism. There is, for example, a lively and intense debate about the eu’s “democracy deficit” or “legitimacy deficit” and how to repair it. This concern even appears prominently in the eu’s Laeken Declaration, the official document that initiated the process leading to the new draft constitution. A cynic might say that this is the defensive response of European elites, worried that disillusionment among European publics with the remote and opaque decision making of the eu may derail the entire project of “ever closer union.” But I believe that it also reflects the fact that the global prestige of the democratic principle is perhaps higher than it has ever been — notwithstanding the growing tendency to question the legitimacy of the modern state.

As a result, many students and proponents of the eu seem to be groping toward the view that the eu can become a democratic non-state. They refuse to accept the dichotomy according to which the eu must be either 1) an essentially intergovernmental organization that derives its democratic legitimacy through the national parliaments of its member states or 2) a genuine federal state that derives its democratic legitmacy through governing institutions directly responsible to the European electorate. They say, with more than a little justification, that the eu already has gone well beyond being a merely intergovernmental institution yet falls far short of being a federal state. At the same time, their argument is not that the eu has found some “middle way” between intergovernmentalism and traditional federalism but rather that its organizing principles must be understood as existing on a different plane from the continuum that runs from intergovernmentalism to federalism. Thus, they define the eu as a non-state, non-nation polity (or entity).⁴

It may be true that so far this is largely the language of academics rather than politicians or publics, but the argument has a considerable attraction for the latter as well. First, this non-state conception appeals to a strong antipolitical disposition that is seen today in many parts of the world but is especially powerful in Europe. This disposition is reflected in the enormous prestige enjoyed by “civil society” and by “nongovernmental organizations,” as compared to political parties or to governments. One way of viewing the non-state vision of the eu is that it promises to provide governance without the need for government. Indeed, some Europeans, far from wishing to build a new kind of polity, seem to aspire to the creation of a new nongovernmental organization — the eu as the world’s largest and most influential ngo. Second, the non-state conception seems to offer a means of what is frequently referred to as “squaring the circle” — that is, building an ever closer European Union without taking away the sovereignty of member states that many Europeans continue to hold dear.

According to the classic modern doctrine of sovereignty, of course, it was regarded as impossible to maintain sovereignty in both a political union and its constituent parts. In contemporary language, one might say that the lodging of sovereignty was regarded as a kind of “zero-sum game.” Here is how Alexander Hamilton, in Federalist 15, characterizes the opponents of the Constitution drafted by the Philadelphia convention: They aim, he charges, “at things repugnant and irreconcilable; at an augmentation of federal authority without a diminution of State authority; at sovereignty in the Union and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio.”

A bit further on, Hamilton elaborates on what he calls “the characteristic difference between a league and a government” — namely, that only the latter can extend its authority to individuals, while the authority of the former reaches no further than to member governments. Government, according to Hamilton, involves the power not only of making laws, but of enforcing them. For if they are without sanctions, “resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” While governments may deal with recalcitrant individuals through the “courts and ministers of justice,” there is no way a league can enforce its decisions against one of the sovereign entities that compose it without resorting to military force. Thus, in a league “every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience.”

The Federalist goes on to support this reasoning by appeals both to the nature of man and to the experience of previous confederations. Because men love power, those who exercise sovereignty are likely to resist attempts to constrain or direct them. Thus, in confederations that attempt to unite sovereign bodies, there is inevitably a centrifugal tendency for the parts to free themselves from the center. The subsequent numbers of the Federalist then explore the experience of confederations both ancient and modern. The conclusion drawn from this examination of the historical record is emphatically stated at the end of Federalist 20 (a paper sometimes attributed jointly to Hamilton and James Madison) — namely, “that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of the mild and salutary coercion of the magistracy.”

Hamilton justifies this sweeping conclusion by appealing to “experience [which] is the oracle of truth.” Yet proponents of the new views put forward by theorists of the European Union would point precisely to the experience of European integration to contradict Hamilton’s conclusions. First of all, though in many respects it seems closer to a league than to a government in Hamilton’s terms, the eu, thanks to various rulings of the European Court and their acceptance by national courts, does have authority that in important respects reaches to individuals as well as collectivities. Second, in spite of the lack of a mechanism to enforce compliance, the decisions of the eu are largely accepted by member states — and this without resort to the sword.

In fact, the eu seems to present the spectacle of constituent units obeying the dictates of the center not only without violence but even without visible coercion. In trying to understand this unprecedented phenomenon, I have found particularly helpful a formulation offered by J.H.H. Weiler, one of the most distinguished scholars of European law. Weiler argues that the eu has evolved a federal constitutional or legal structure alongside a largely “confederal” or intergovernmental political structure.⁵ In other words, Europe has accepted the “constitutional discipline” characteristic of federalism without becoming a federal state. In effect, it has become a federal non-state whose decisions are accepted voluntarily by its constituent units rather than backed up by the modes of hierarchical coercion classically employed by the modern state. In fact, the eu combines a “top-to-bottom hierarchy of norms” with “a bottom-to-top hierarchy of . . . real power.” It achieves what Hamilton would have regarded as either disastrous or impossible — the separation of law from the power to enforce it.

However accurate Weiler’s analysis may be in describing the current state of the eu, it surely raises a couple of larger questions: First, what conditions have enabled this structure to work so far, and can it continue to do so? Second, presuming that the federal non-state can continue to maintain itself, what would be the ultimate consequences for democracy? The first of these questions concerns the viability or practicability of the federal non-state, while the second concerns its ultimate desirability. I cannot hope to address these matters in more than a very preliminary way here, but let me try to offer a few reflections about them.

War and the postmodern state

In seeking to understand what has enabled the eu to function effectively as a federal non-state, I would emphasize the fact that its member states are all liberal democracies. This means not only that they are “open societies” but that they are averse to using force against other open societies. Here I think that what has been dubbed the “democratic peace” thesis is directly relevant. That thesis, based on an imposing record of historical evidence, holds that liberal democracies rarely if ever fight wars against each other (though they are quite prone to fight wars against countries that are not liberal democracies). The web of ties that bind member states of the eu has undoubtedly contributed to the sense that war among them is unthinkable, but one might argue that the nature of the member states is more important in this regard than the framework that connects them. After all, war is equally unthinkable between an eu member state and a nonmember like Norway or Switzerland, just as it is unthinkable between the United States and Canada or between Australia and New Zealand.

The fact that contemporary liberal democracies do not fear that force will be used against them by their fellow liberal democracies makes possible a previously unprecedented degree of integration among them. In Europe, a region where most regimes — and certainly the most powerful ones — are liberal democracies, it has made possible the success of the European Union in achieving an extraordinary degree of cooperation without erecting a “superstate.” In understanding this achievement I have found very useful the analysis offered by the British diplomat Robert Cooper (a former foreign policy advisor to Prime Minister Tony Blair who is now working as director-general for external and politico-military affairs for the Council of the European Union). In his remarkably concise essay The Postmodern State and the World Order (London: demos and the Foreign Policy Centre, 1996), Cooper provides what, to my mind, is a much more persuasive case than does John Ruggie for the novelty of the eu and for the willingness of its member states to surrender some of their sovereignty.

Cooper convincingly demonstrates that there has been a fundamental change in the international aims and behavior of many of the advanced democracies, but he also emphasizes that the postmodern order most clearly represented by the eu constitutes only one portion of today’s world. For it coexists with two other orders: the modern order of robust national states still jealous of their sovereignty (among his examples are India, China, and Saddam Hussein’s Iraq) and the premodern order of “failed states” (Afghanistan, Somalia, Sierra Leone) incapable of exercising real control over their territories. This means that the postmodern states, while they may eschew the use of force among themselves, cannot wholly escape the need of employing it in their dealings with modern and premodern states. It also means that the ability to preserve and enhance the postmodern achievements of the eu depends on a willingness to depart from the norms of postmodern behavior and to employ the “rougher methods of an earlier era” when the situation demands. As Cooper puts it, “Among ourselves, we keep the law but when we are operating in the jungle, we must also use the laws of the jungle.”

As we have recently witnessed, however, the perceived need to resort to “rougher methods,” especially those involving the use of military force, tends to create political disputes among postmodern states that are not easily resolved consensually. Some would no doubt argue that the current contentions within the eu are largely provoked by the policies of the United States and that the fault lines dividing Europeans have their origins in Washington. Others would surely respond that the U.S. security umbrella provides the indispensable shelter that allows the eu to function as a wholly civilian non-state polity.

Be that as it may, the difficulty underlined by Cooper remains. Even if the European Union succeeds in taming national sovereignty and in subordinating force to law within its own postmodern sphere, can it continue to resist the pressures and dangers that arise from the still untamed parts of the world? As Cooper notes, “States reared on raison d’état and power politics make uncomfortable neighbors for the postmodern democratic conscience. Supposing the world develops . . . into an intercontinental struggle. Would Europe be equipped for that?” To put it somewhat differently, will a non-state be able to defend and preserve itself in a world that still contains powerful modern states? Or would such external pressure drive Europeans to try to recover their “stateness,” whether by the formation of a real European “superstate” or by a reassertion of sovereignty at the level of the nation-state?⁶

So even if Europe is undergoing a far-reaching transformation such that the old notions of sovereignty no longer apply within the intra-European sphere, the question remains whether “postmodernism in one region” can really work. Can Europe renounce the use of force if other parts of the world refuse to do so? And can Europe continue to govern itself within a non-state framework if its member states must continually wrestle with life-and-death issues of war and peace that intrude upon it from other regions? The eu’s perennial difficulties in fashioning a common foreign policy underline the seriousness of this dilemma.

Transcending the state?

But let us for argument’s sake presume that the rest of the world can be postmodernized and, thus, that this problem can be resolved. There would still remain the question of what might be lost in leaving behind or transcending the nation-state. Here I have in mind precisely the issue of democracy. This problem is also briefly noted by Cooper, who formulates it in the following terms: “A difficulty for the postmodern state . . . is that democracy and democratic institutions are firmly wedded to the territorial state. . . . Economy, law-making, and defense may be increasingly embedded in international frameworks, and the borders of territory may be less important, but identity and democratic institutions remain primarily national.”

Cooper’s reference here to identity being “primarily national” raises an important ambiguity inherent in the word “national,” so let me make clear that I am not suggesting that political identity must be tied to some form of ethnicity. As the case of the United States proves, such identity can be established among citizens of very diverse ethnic origins. Though it would not be easy, I do not think it is out of the question that a European political identity could be nurtured that would come to supersede the attachment of Europeans to their existing national states. So I am not arguing that European unification as such is hostile to democracy, or that the only way to preserve democracy in Europe is to reaffirm the sovereignty of the eu’s member states. I am not a “euroskeptic.”

My argument is that for democracy to work, there must be an overarching political order to which people feel they owe their primary political loyalty — in short, a state, with clear boundaries and clear distinctions as to who does and does not enjoy the rights and obligations of citizenship. In principle, such an order could equally well be constituted at the level of the European Union or remain at the level of its member states. What I doubt is that it is possible to square the circle of competing sovereignties over the long run or that democracy can work outside or across the framework of a sovereign state. So my plea is that those who are seriously devoted to democracy reconsider their devaluation of the state, or at least think harder about how it can be left behind without also undermining democracy.

The strong tendency today for many proponents of liberal democracy to turn against the state, despite the long and intimate relationship between liberal democracy and the modern state, is striking. I think the reason behind it lies not only in certain historical developments but in a tension that has always existed at the heart of liberal democracy. Elsewhere I have explored the tension between the liberal and the democratic elements that form the cohesive but unstable compound known as liberal democracy.⁷ The liberal or cosmopolitan element, which emphasizes the universal human rights of the individual, fits uneasily with the particularistic demands of self-government and citizenship that constitute its specifically democratic element. In my view, the European Union, especially as understood by the approach that I have been discussing, represents the exaltation of liberal democracy’s liberal aspect at the expense of its democratic aspect. The real issue is whether liberalism can flourish — or even survive — if it is not anchored in the framework of a democratic state. Can liberalism, as it were, outgrow the state and sustain itself within a transnational or cosmopolitan order?

The most perceptive account of the historical and philosophical dialectic involving democracy and the nation-state has been presented by the French political philosopher Pierre Manent. He has explored this subject in several recent writings, but I cite here a passage from his essay “Democracy Without Nations?” which appeared in English translation in the Journal of Democracy (April 1997): “One might say that the democratic principle, after having used the nation as an instrument or vehicle, abandons it by the wayside. This would not be worrisome if a new vehicle were available or clearly under construction. This new political form, however, is nowhere in sight.”⁸ I emphasize the word political because Manent is of course aware that many see the European Union as just such a vehicle. His contention, however, is that “Europe refuses to define itself politically,” preferring to see itself in cultural or civilizational terms — or, at any rate, refusing to constitute itself as a state.

Why, according to Manent, does the democratic principle (which holds that human beings are by nature free and equal and that all political legitmacy must be rooted in their consent) abandon or even turn against the state? He links this development to the fact that the boundaries or limits of the particular political unit embodied in the state cannot themselves be justified democratically. All existing states owe their boundaries to historical contingencies — especially to the outcome of wars — that are wholly arbitrary from a strictly democratic perspective. The democratic principle of popular sovereignty or self-determination fails to provide any basis for deciding how to define the people that is sovereign or the collective self that is to determine its own fate. Thus, the distinction between the citizen and the outsider can appear ultimately arbitrary and even unjust. From a cosmopolitan perspective it seems to be one more example of “discrimination,” or of using an artificial distinction to justify treating some people differently from others.

Thus, the democratic principle of human freedom and equality can be turned against the state in the name of the individual and of the common humanity that he shares with citizens and noncitizens alike. Once the democratic principle is pushed to the point where it breaks down the framework of the nation-state, Manent argues, it in effect turns against political life as such. That is, it calls into question the possibility of any self-governing community.

Political life requires that the political community be sovereign, that it establish the laws under which other human associations or communities operate. It is the public sphere that ultimately determines the boundaries of the private sphere, however capacious those boundaries may be. And the public sphere can exist only if people become fellow citizens, if they agree to be governed by the decisions made through a legitimate political process, even when these decisions may require that they part with their property or risk their lives. As Manent emphasizes, to have a political order people must be willing to “put things in common,” to become part of a community that in important respects must set itself off from those who are not members. Only in that way can it govern itself.

Citizens and the other

The most revealing account that I have found of the principled and moral refusal to “put things in common” in a political fashion is provided by J.H.H. Weiler in the essay cited above. Not coincidentally, that essay concludes by explicitly casting doubt on the value of democracy. For Weiler, Europe’s non-state constitutional federalism “represents . . . its deepest set of values,” rooted in what he calls the Principle of Constitutional Tolerance. This principle rejects not just nationalism but even the idea of “constitutional patriotism,” of an ethos that “implicitly celebrates a supposed unique moral identity, the wisdom, and yes, the superiority of the authors of the constitution, the people, the constitutional demos.” Weiler denies that democracy should be regarded as a goal of the eu. The goal, instead, “is to try, and try again, to live a life of decency, to honour our creation in the image of God, or the secular equivalent.” And “in the realm of the social, in the public square, the relationship to the alien is at the core of such decency.” Nothing is “normatively more important to the human condition and to our multicultural societies.”

How, then, should we deal with the alien? Weiler describes two strategies. The first, which involves inviting the alien to become one of us, e.g., by making him a fellow citizen, is rejected because “it risks robbing him of his identity.” It is thus “a form of dangerous internal and external intolerance.” Instead, Weiler argues in favor of a strategy that maintains boundaries and respects difference, but in which “one is commanded to reach over the boundary and accept [the alien], in his alienship, as oneself.” This points to the “deeper spiritual meaning” of Europe’s non-statist constitutional architecture. It calls upon Europeans to bond not with fellow citizens but precisely with others. It asks them to “compromise” their “self-determination” in the name of tolerance. It calls for voluntary subordination to the decisions of others, “which constitutes an act of true liberty and emancipation from collective self-arrogance and constitutional fetishism.” In sum, Weiler attacks the moral basis of the constitutional democratic state, in which people become fellow citizens by “putting things in common,” in favor of the allegedly more elevated principle of respecting what is alien.

Weiler’s essay is one of the most brilliant things I have read about the European Union, but, as is no doubt apparent, I believe it is profoundly misguided, both morally and practically. Central to Weiler’s discussion is his invocation of the fact that “Europe was built on the ashes of World War ii, which witnessed the most horrific alienation of those thought of as aliens; an alienation which became annihilation.” But what is the proper lesson to be drawn from the Holocaust? Is it that the constitutional democratic state is inadequate, or is it that the worst evils come from the failure to establish and consolidate constitutional democratic states? To me, it seems obvious that the correct lesson is the latter. Certainly, I know that if neo-Nazis or other alien-haters were to target me, I would vastly prefer to entrust my rights and my fate to the protections offered by a constitutional democratic state that combines law with force than to a transnational architecture of any sort.