Second Place – A Farewell to ‘Dulce et Decorum est’? Constitutional Patriotism’s Strained Relationship with the Enlightenment and What It Means for the European Union

My friend, you would not tell with such high zest

To children ardent for some desperate glory,

The old Lie; Dulce et Decorum est

Pro patria mori.

—Wilfred Owen[1]

Since France and the Netherlands rejected a European Constitution in 2005, the topic of a ‘European’ Constitution has become taboo. With the exception of Jürgen Habermas and Dieter Grimm’s ongoing debate on constitutional theory,[2] national politicians parry the topic of a formal constitution, hoping to deter electoral backlash.[3] Moreover, scholars willing to advocate for “a written federal constitution that unambiguously defines the rights of the European Union” run the risk of eliciting a barrage of academic criticism.[4] Ultimately, consensus dictates that the reforms of the 2007 Treaty of Lisbon have eclipsed the necessity of constitutionalization.

One simple explanation of Lisbon’s role in this taboo is the treaty’s appropriation of federalist principles. Supranationally, the landscape of the European judiciary has changed considerably now that citizens have been granted distinct juridical rights under EU and national law; the European Court of Justice has been vested with powers of judicial review; and European law has become increasingly understood as domestic law, not international law.[5]

As a result of the Lisbon reforms, many questions remain unanswered in the field of European constitutional theory. This inertia may have been borne from economic apprehension regarding the European Economic and Monetary Union’s structural flaws, as Habermas suggests, or from the existential crisis of ‘European’ identity and the associated debate over which normative principles ought to guide European integration.[6] Although Grimm argues that the ostensible “constitutional status quo” can “freeze” the extant democratic deficit in the EU, Habermas has suggested that the only way to alleviate the deficit would be to revise European treaties, in perhaps a sweeping ‘reconstitution’ of Europe.[7]

There is, however, an argument that Europe already has a constitution.[8] According to this argument, Europe’s constitution is implicit—a manifestation of the founding treaties and the incremental constitutionalization that has arisen from the growing EU legal system.[9] Müller has even suggested that the absence of a European constitution may itself be a distinctive European constitution.[10] The prominence of the EU in civil society has inextricably tied European civic identity with the EU such that the EU captures the political imagination of citizens, resulting in “patriotism” toward Europe’s unwritten constitution, or at least the idea of it.[11]

Patriotic sentiment toward a European constitution is not a modern phenomenon; in fact, the genealogy of “constitutional patriotism” dates back to the identitarian wreckage of post-war West Germany. Although the debate over democratic institutions in a nascent democracy was famously raised in Book VIII of Plato’s Republic,[12] West Germany put aside its Platonic and Aristotelian “love” of patria and Republican liberty in favor of stability.[13] Although the 1949 West German constitution was an exogenous document superimposed by Western allies, the West German political philosopher Dolf Sternberger emphasized the importance of “passionately rationalizing” this new constitution as a means of political stability.[14] According to Sternberger, citizens must not only collectively defend and identify with the democratic state, but they also must possess a civic reason to love the state and its constitution.[15] Sternberger called this affection, Verfassungspatriotismus, or constitutional patriotism. Modern scholarship criticizes Sternberger’s rendition as tendentiously illiberal in its prioritization of shared consciousness over full-fledged democracy with bountiful dissent.[16] However, the militancy of constitutional patriotism against radicalism can perhaps be appreciated in light of Sternberger’s fear of fascism resurfacing in Germany.

 

In the same vein, Karl Loewenstein advanced constitutional patriotism by further endowing it with concrete elements of militant democracy. Loewenstein argues that fascism is utterly devoid of rational content, and it relies on emotivist appeals. [17] If constitutional patriotism can inspire stringent adherence to democratic values that appeal solely to reason, then it may be permissible to prohibit certain features of democracy, such as free speech and assembly when practiced by any group with fascist leanings.[18] To the extent that Sternberger advocated militancy i.e. censorship, against fascism as a means of security, Loewenstein emphasized constitutional patriotism’s militant defense against reemerging fascism on the grounds of universally justifiable protection based in reason.

More recently, however, constitutional patriotism has become closely tied to the philosophy of Jürgen Habermas. Habermas, like his predecessors, argues that fascism’s grip over Germany during the war rendered the “Aristotelian polity” utterly “infeasible” as a modern paradigm.[19] With West German historians ambitiously seeking to expunge traces of fascism from the public sphere,[20] West German liberal democrats could no longer identify as citizens of a polity so closely tied to a repugnant past of illiberalism.[21] While Sternberger’s emphasis on state security and Loewenstein’s on militancy may be constitutive of constitutional patriotism, Habermas argues that they are not essential to the derivation of it. In his view, the condition of post-war Germany eradicated the necessity of fixtures of conventional morality like religion, nationalism, and quasi-sacred sources. In the “post-conventional” world, liberalism and the Enlightenment tradition of reason and secularism proved victorious, allowing citizens to hold impartial views separated from desire.[22] Ultimately, Habermasian constitutional patriotism emphasizes that political attachment ought to “center on the norms, the values and… the procedures of a liberal democratic constitution,” not historical or cultural communities centered on a polity.[23] In other words, there must be a love of shared political freedom and of the institutions that sustain it.[24]

Habermasian constitutional patriotism even holds the potential to develop outside of Germany as a guiding principle for European identity and integration.[25] The thought of a supranational constitutional patriotism is borne out of Habermas’ rejection of the “neoliberal illusion” that collapsing financial markets and grand scale violations of human rights can be dealt with by individual states or even coalitions of states.[26] Habermas’ vision of the EU as an apt target for constitutional patriotism also stems from the Enlightenment tradition of universality derived from reason, an idea enshrined in the EU’s central documents. Habermas cites how the spirit of the 1958 Luth Decision strengthened the constitutional principle of free expression, and how Article Six of the EU Treaty explicitly refers to the common constitutional traditions of protecting “human rights” and “the fundamental freedoms” of all citizens, without reference to specific history of culture.

The central argument of this paper rebuts the widespread scholarly claim that constitutional patriotism stems from the Enlightenment tradition; indeed, constitutional patriotism is not supported by the philosophies of prominent Enlightenment thinkers. I begin by dividing scholarship on constitutional patriotism into three camps: a universalist reading, a particularist (or communitarian) reading, and a compatibilist approach. From here, I argue that the universal nature of constitutional patriotism fails to provide a compelling reason for a citizen to swear allegiance to a European state; rather, constitutional patriotism explains why a citizen’s loyalty ought to lie with the state that best promotes universal constitutional principles. This criticism cites an inherent problem with the compatibilist approaches of Kleingeld, Muller, and Lacroix, all of whom attempt to reconcile Habermas’ universalist reading of constitutional patriotism with the communitarian reading advanced by Hayward. I will then raise a counter-objection that Habermas could leverage against my claim on the grounds that constitutional patriotism appeals to the communal European values of the Enlightenment, primarily reason and progressivism, which are inextricable from European identity. However, looking at the works of major Enlightenment thinkers, such as Hobbes, Locke, Rousseau, Burke, and Hume,[27] I argue that constitutional patriotism’s foundation on pure reason and its underlying assumption of inevitable progress fail to cohere with Enlightenment thought as seamlessly as Habermas would have us believe. I will conclude by suggesting that even if one were to overlook this paper’s critique of constitutional patriotism on theoretical grounds, the prospect of success for constitutional patriotism in the EU is further complicated by Eastern Europe’s dubious history with democracy.

 

The Trifurcation of Constitutional Patriotism

Each of the three interpretations of constitutional patriotism—the universalist, the particularist, and the compatibilist—conveys a distinct advantage of the theory. The universalist critique advanced by Habermas relies on the assumption that constitutionalism is an inherently universalist principle that relinquishes the need for nation-specific forms of patriotism. Derived from the Kantian tradition, this view asserts that citizens of a political state are analogous to free and equal co-legislators of moral law, who have moral obligations to all citizens irrespective of nationality, language, and custom.[28] Any citizen can understand these obligations, since they are derived from reason and thus universally accessible. Thus, universalists underscore attachment to a democratic order that promotes coexistence amongst citizens of diverse pre-political identities.[29] This iteration of constitutional patriotism seems to favor European integration as a process by which a “deliberative ‘we’ emerges so that there is no out group.”[30]

A particularist understanding of constitutional patriotism principally argues that any form of patriotism requires civic bonds particular to a single state. In order for constitutional patriotism to generate civic bonds to constitutional principles, “people need some politically particular interpretation of such principles.”[31] Scholars such as Lacroix and Hayward have pushed back against constitutional patriotism’s universal landscape by articulating that the nation is the ultimate horizon for political identity. According to this argument, constitutional principles appealing to universalism establish “bonds of social unity” that are not sufficiently strong to survive democratic majoritarian politics.[32] Though skeptical of the universalists’ reliance on reason, the particularists, i.e. communitarians, do not malign reason as the basis of civic attachment; rather, they emphasize that non-rational factors like language, culture, and history represent community affiliations that individuals prioritize over reason.[33] Though constitutional patriotism may be couched with “universal constitutional principles,” binding men’s “hearts” requires supplementary appeals to conventional channels and mores.

In recent years, Kleingeld, Lacroix, and Muller have endeavored to reconcile the communitarian and universalist views of constitutional patriotism. Muller asserts that theoretical justification for constitutional patriotism can only go so far. Reducing nationality and other non-rational attachments to the state to a secondary concerns, as the universalists do, may hastily dismiss the “ethical significance” that citizens place on these values.[34] That is, the basic unit of the universalist reading of constitutional patriotism, a rational being, will also be swayed by non-rational factors. As Lacroix’s account corroborates, the EU must make the shape and style of constitutional patriotism such that it both effectively advances its own universal principles while maintaining an inherent European character.[35] In her view, the particular characteristics of Europe’s constitutional patriotism are constituted by ‘militancy’ and ‘memory.’ Militancy, a characteristic influenced by Loewenstein, cultivates an “economy of moral disagreement” that seeks consensus on defining internal limits on democratic freedoms against illiberal democracies.[36] Crowding out emotional crowd politics that actively damage democratic life is an essential element of constitutional patriotism. [37]

The memory of the European public sphere also endows constitutional patriotism with particularity. Habermas’ account is situated historically, in the identitarian shambles of post-war Germany, which may reflect constitutional patriotism’s inextricable connection to its own history. Some scholars have advocated critically opening European national memories between member states as a means of deliberating what defines the ‘European’ identity.[38] This view attempts to democratize European memory: European states would endeavor to share responsibility for each other’s pasts with the aim of constructing a common political culture. While it is not prima facie evident that historical memories can be converged, this has not precluded scholars such as David Marsh from proposing reconciliatory committees that reopen the annals of history in order to cultivate European civic bonds.

 

The Knife of Reason’: Compelling A Particular Constitution

However, the compatibilist view fails to consider how the universalist dimensions of constitutional patriotism may override any ‘particular’ or communal attachment to a single European state. The universalist understanding of constitutional patriotism asserts that citizens have general duties to defend just democratic states, but this does not seem to imply that these duties require citizens to support any (or all) such states.[39] As Hayward argues, democracy needs to give a compelling sense of why citizens form a “people” with one group of particular strangers and not with another.[40] While ‘memory’ and ‘militancy’ may provide a European blush to the universalist understanding of constitutional patriotism, they do not obligate citizens in the same manner as the universal rule of promoting a democratic order. We must ask why citizens would swear allegiance to or even favor a ‘European’ state over a more democratic, and thus more “just,” state. Painting a European coat on constitutional patriotism endows it with militancy and memory, but these are “agent-relative” values that provide moral relevance to national borders and the birthplace of citizens. Yet, as previously mentioned, constitutional patriotism adheres to the Kantian principle that the basic unit of a state is a rational citizen, not a rational European citizen. What follows are universal constitutional truths that are accessible to all citizens. Introducing “European characteristics” to this theory would transmit agent-relative characteristics—such as being born in Europe—to an inherently agent-neutral philosophy, thus undermining the universalist appeal of constitutional patriotism. Under a universalist system, how can citizens be permitted to show partiality to one group of citizens, i.e. Europeans? Particularist attempts to vindicate constitutional patriotism “articulate definitions of who we are and who we want to be,” but this seems to contradict any conception of universalism. Yet, without the particularist European tint in constitutional patriotism, how can European citizens be compelled to unite under a single European state (or any European state) if doing so would violate notions of universalism?

Habermas has at least two strong responses at his disposal. First, as Habermas has previously articulated, constitutional patriotism’s erosion of “conventional” tradition i.e. its strict adherence to universalism, is not only permissible given the historical context but it expedites the acceptance of constitutional principles. Germany was a testing ground where citizens could only rationalize democracy if the traditions preceding this critical juncture were “wiped away” and replaced with the “knife of reason.”[41] Because the German tradition was ridden with problematic histories, the universal rule of law laid by reason does not deter particular attachment to the state because it becomes the very basis of the state.

However, this rebuttal seems to beg the question by failing to preclude the threat of totalitarianism. Habermas’ “knife of reason” logic lays in stark contrast to Hannah Arendt’s prominent post-war account of totalitarianism. Arendt argues that communal bonds established by tradition are necessary to preempt totalitarianism’s ability to alienate the citizen from the state and erode the social contract.[42] Instead of “wiping away” history in an act of self-denial, West Germans should have structured a strong political culture informed by their traditions. According to Arendt, tying political structures to inherited tradition can overwhelm the “flimsy and fluid” forces of fascism. Totalitarianism came to fruition not as the culmination of the political tradition in Germany; rather, it was the perverted understanding of this tradition that uprooted the political cultures necessary to protect human rights. A progressive understanding that constitutional principles can rest on universal principles alone conserves nothing but the grounds of ideology “that tend toward the breakdown of social order by destroying communal bonds.” In fact, one of the frightening realities of totalitarianism for Arendt is that as soon as one accepts the basic tenets, one is led to contradiction by reason and forced to ultimately accept the larger theory.[43]

Another critique of Habermas’ argument, advanced by Bruter, is that while this “particular” attachment to rationalism may be sufficient for West Germany, it is difficult to imagine its success on a larger scale.[44] In the status quo, the reference point to the state for EU citizens is not governmental institutions but rather horizontal characteristics specific to their own state, such as its language, history, arts, and culture. While the ideals of freedom and democracy may be vertically structured between the state and the European Union, the primary attachment to political institutions still rests on a national level.[45]

 

Contesting Enlightenment as Particularism

Even if Habermas were to leverage the first counter-objection, he would still need to elaborate why constitutional patriotism can motivate allegiance to Europe specifically. One available response is that constitutional patriotism appeals to the cumulative and ultimate reference point for the entire European continent: the spirit of Enlightenment values.[46] To Habermas, “Enlightenment and modernism are synonyms,” and the project of the Enlightenment is unfinished but can be realized through an embrace of universal constitutional principles.[47] Risse has also advanced this claim, arguing that “the preferences of member state governments” in stipulating the conditions of European treaties reflect the Enlightened “ideas enshrined in their various constitutional traditions.”[48] Following Risse’s logic, constitutional patriotism could offer a strong model for further European integration since Enlightenment values, such as the central role of reason and secularism, are inherently prominent dimensions of what constitutes European identity.[49] Habermas argues that one can even conceive of the entire “European project” as teleologically targeted toward a singular world society constituted by the ideals first promulgated in the intellectual tradition of the Enlightenment.[50] The end of Habermasian constitutional patriotism is “A United Europe [as] a new kind of ethicopolitical entity, which could even serve as a model of concretely realized universalism to other parts of the globe.”[51]

At first glance, constitutional patriotism’s centralization of deliberation and constitutional culture seem to embrace the Enlightenment thought of thinkers such as Rousseau. Rousseau ascribes great importance to a constitution as a cornerstone of grounding civil bonds: “What makes the constitution of a state truly solid and lasting is that proprieties are observed with such fidelity that the natural relations and the laws are always in agreement…each people has within itself some cause that organizes them in a particular way and renders its legislation proper for it alone.”[52] To Rousseau, a constitution’s “lasting” properties are most meaningfully manifest when citizens possess a particular fidelity to the constitutional principles that they deem correct for their society. Following this line of thought, constitutional patriotism centralizes the role of citizens deliberating and accepting the proper constitution for their society, and Habermas’ worldview coheres with Rousseau’s vision of a society led by a constitution. By elevating the role of public constitutional deliberation, constitutional patriotism adopts Rousseau’s concept of the general will, which seeks to best serve “the common good” by establishing free public discourse. Habermas’ articulation that “collective identity can be rationalized by European states” closely recalls Rousseau’s language that “we can rationalize collective identities in the public sphere.”[53]

Moreover, in various ways, constitutional patriotism revives various questions central to Enlightenment inquiry. One can see how Habermas’ concentration on universal democratic ideals echoes Rousseau’s social contract and its emphasis on equality: “the social compact establishes among the citizens an equality of such a kind that they all commit themselves under the same conditions and should all enjoy the same rights.”[54] Additionally, constitutional patriotism’s assertion that “citizens are subject only to those laws which they have given themselves to in accordance with a democratic procedure” is consistent with the social contract formulated by Locke and Hobbes.[55] Both of these thinkers argue that political orders necessarily imply consent from the citizens, and each vehemently advocated for the primacy of citizens consenting to such an order. Following this line of thought, constitutional patriotism’s focus on the interplay between legitimate democratic order and “the increase in power of international organizations [undermining] the democratic procedures in a nation” implicitly refers to Hobbes’ and Locke’s concerns of sovereign states overextending their forces beyond pre-established (or pre-constituted) boundaries.[56] Thus, to a certain extent, constitutional patriotism does in fact cohere with the thoughts of Enlightenment thinkers.

Yet, on a more fundamental level, constitutional patriotism does not derive from the Enlightenment tradition. Upon closer examination, constitutional patriotism fails as a communal manifestation of Enlightenment values because it overstates the centrality of reason. Though Enlightenment thinkers reify reason in the confines of the state, the Enlightenment project should be understood as bringing reason “to terms with sentiment,” not banishing it.[57] Liberal philosophers such as Habermas emphasize the “certitudes of reason,” which can keep the strong passions of loyalty and belonging that inspire civic engagement at bay. However, many Enlightenment philosophers would argue that these conventional forces are not always pernicious; in fact, “cold rationalis[m]” may be a more pernicious force. In the works of prominent Enlightenment thinkers, from the social contract theorists, to the Scottish philosopher David Hume, to the reactionary views of Edmund Burke, there is a visible tension between reason and tradition, which is not accommodated by the universalist tenets of constitutional patriotism.

Hume’s skepticism of reason’s jurisdiction over human institutions may call into question constitutional patriotism’s basis in rationalizing a citizen’s identity. As one of the most prominent epistemic philosophers to influence the Enlightenment, Hume resisted the absolute rule of reason. Hume contends that a priori reason fails to provide a compelling explanation for gaps in human knowledge since its conclusions are not grounded in experience.[58] At best, reason must “invent or imagine some event, which…must be entirely arbitrary.”[59] Admittedly, custom too may be fallible upon reflection: “the influence of custom…not only covers our natural ignorance, but even conceals itself.”[60] Yet, instead of rejecting conventional custom on the grounds of its imperfection, as Habermas does, Hume attempts to delimit reason, not custom. He does so on the grounds that reason can destructively undermine any human institution or custom that is not derived in a priori thought. In other words, reliance on reason may tend toward the arbitrary rejection of profound human institutions, such as civil society, on the overly abstract grounds of being inconsistent with universal reason. Hume concludes that the price humanity would have to pay to sacrifice its own customs would not be worth the marginal expansion of reason’s arbitrary jurisdiction over the human experience. Habermas’ assertion that collective identities ought to be completely rationalized vis-à-vis constitutional principles seems to contradict Hume’s empiricist claim that reason invites arbitrariness when not guided by experience, whereas inherited custom humbly admits the limits of reason to access all principles.

In fact, as Hayward argues, the pure reason of constitutional patriotism may leave citizens utterly devoid of the universal truths of reason. As a matter of civic identity, constitutional patriotism seems to implicitly violate Enlightenment principles by failing to reflect an enduring truth about “who I am” and what “my place is in the world.”[61] Because constitutional patriotism is deliberative and only arrived at through procedural adherence to constitutional principles, it fails to provide a constitutive understanding of one’s civic identity that is stable, according to Hayward. If citizens, against Hume’s advice, leave all principles open to “renegotiation by deliberation,” then “the boundaries that delimit their political community can be renegotiated.”[62] Thus, constitutional patriotism’s reliance on reason may be destabilizing.

In terms of attachment to the state, Hobbes would likely be critical of constitutional patriotism’s reliance on pure reason and universal principles. Hobbes, like Hume, is an empiricist who doubts the absolute success of reason: “in any subject of reasoning, the ablest, most attentive [of] men may deceive themselves and infer false conclusions.”[63] Reason may be an end of man, but Hobbes centralizes observation and sense perception as necessary tools to harness political power. Though “all men reasoneth alike,” when two rational-beings come into conflict and neither is in error, how can the conflict be resolved? Hobbes’ answer is civil society and a social contract. Reason is central to Hobbesian philosophy insofar as it grounds natural law and the necessity of the social contract; however, once Hobbes arrives at the civil state, reason seems to be an insufficient universal guide. If the absolute rule of the sovereign is based on the consent of the governed, with the sole condition that the sovereign must protect the citizenry, how can the state justify war? Would coercing citizens to abnegate their safety and fight not be an essential violation of the “constitution” derived in rationality? The conclusion must be that something besides reason gives rise to a citizen forgoing her own safety.

Perhaps, as Edmund Burke contends, love of country, custom, and the passions can explain citizens’ commitment to the constitutional state. Only the state can “create in us” the sort of “love, veneration, admiration, or attachment” that “is incapable of being filled…by that sort of reason.” [64] Reason attempts to cut through an instinctual affection that is a necessary component of stability since reason renders citizens into “mere machines and instruments of political benevolence.”[65] In order to “bind up the constitution of our country with our dearest domestic ties,” citizens must adopt the fundamental laws of the state “into the bosom of our family affections…procuring reverence to our civil institutions on the principle upon which nature teaches us to revere individual men and [from] whom they are descended.” [66] To Burke, patriotic sentiment toward a constitution is constituted by a respect for the tradition that citizens have inherited. The “moral imagination” inspired by ancestry and tradition compels individuals to respect the institutions in place, both stabilizing the polity and granting citizens their political rights.[67] It is conceivable that this non-rational patriotism driven by a citizen’s “moral imagination” may provide an answer to the question of dying for one’s state left open by Hobbes.

However, the “moral imagination” advocated by Burke seems to be inverted by Habermasian constitutional patriotism. By redefining rights and duties in reference to individual reason, Habermas empowers the sort of individualism that Burke says would undermine “the common agreement and original compact of the state.”[68] The non-teleological deliberation associated with constitutional patriotism would allow any generation to renegotiate the “pact of society…the constitution,” thus violating their promise of “public faith to the constitution.”[69] Furthermore, the universality of Habermas’ theory would tend toward subversion of the political order under Burke’s framework: it is “perhaps impossible to give limits to the mere abstract competence of the supreme power; but the limits of a moral competence…and the steady maxims of faith, justice, and fixed fundamental policy, are perfectly intelligible and binding on those who exercise authority.”[70] While one can conceive of citizens in the Burkean or Hobbesian state being compelled to die for their state by a force other than reason, it is difficult to imagine the rationalist constitutional patriotism compelling an individual to die for Brussels.[71]

Moreover, the essential Hobbesian question of quis iudicabit (who decides?), as Muller points out, cannot be answered by constitutional patriotism. Muller submits that constitutional patriotism functions as a non-positivist theory, whereby citizens are not asked to agree upon a particular constitution; rather, debate is “encouraged and constantly reflect[s] how coercion can be made legitimate by a set of constitutional essentials.”[72] This strict adherence to a lack of concrete agreement does not cohere with the central importance of legitimacy inherent to the Hobbesian framework. According to the Hobbesian contract, men will only “confer all their power and strength” if there is “one man…that may reduce all their wills, by plurality of voices, unto one will,” appointed to “bear their person, and every one to own and acknowledge himself to be author of whatsoever he that so beareth their person shall act.”[73] Constitutional patriotism not only fails to centralize power in one location, as outlined by Hobbes, but it also fails to provide a concrete constitution that can withstand the populist whims of public discourse. The European Union itself lacks a single locus of sovereignty, due to its permanent dispersal of power, with a dual executive, constituted by multiple sovereign forces that alternate rule at regular intervals.[74] Additionally, if we are to accept the criticisms of the European Council’s opacity, it seems that the EU’s upholding of Enlightenment values through free public discourse is not readily apparent. These sovereign states are also forbidden from leveraging criticisms of the Council’s decisions ex post facto, further suggesting a lack of an essential democratic element: political contest. Without the essential quality of centralization and visible legitimate power, the EU’s constitutional character fails to meet the Hobbesian standard of legitimacy, which served as a perennial concern for all subsequent Enlightenment thinkers.

Likewise, there are diminishing rates of “consent” amongst European citizens, which both fail the requirements of the Hobbesian contract and fail to maintain the democratic spirit of constitutional patriotism. Europe lacks “input-oriented authenticity,” meaning that the role of consenting citizens in supranational politics is marginalized.[75] This may breed a problem for constitutional patriotism, considering that the introduction of a European Constitution would likely, as it did in 2005, be done through electoral procedure. Yet, according to Hix and Hoyland, as European elections devolve into de facto second-order elections that reflect the citizenry’s satisfaction with national governments, the relative importance of the average European voter’s input is steadily declining.[76] The emergence of independent lobbying groups has further marginalized the European voter’s input on constitutional matters, and the prominence of such groups has coincided with a clear reduction in electoral accountability on the European level, thus eroding the EU’s legitimacy.[77] Consequently, constitutional patriotism will devolve into a mere aesthetic of legitimacy that purports an intimate, though unapparent, tie to enlightened values. This theory, without the consent of the people, will always rely on a thick historic majoritarian identity more closely aligned to citizens’ identities, and in turn, constitutional patriotism will become “secondary” to the ethno-cultural particularist bonds of a citizen’s current polity. Thus, one may not only question whether constitutional patriotism is a descendant of the Enlightenment but also if constitutional patriotism’s adherence to liberal values is even ripe for modern European politics.

 

Furthermore, underlying constitutional patriotism is an assumption of the inevitable progress and improvement of its liberal democratic order. In his book The Crisis of the European Union, Habermas claims, “the European Union can be understood as an important stage along the route to a politically constituted world society.”[78] The “constitutional culture” cultivated in the EU is based upon treaties and documents, but the telos of Habermas’ argument is not immediately clear: what is a “politically constituted world society”? Habermas lends some clarity to the end of constitutional patriotism by declaring that the end itself is not important; rather, the process by which the public sphere begins to deliberate and “rationalize” the law will establish a “systematic integration of a multicultural world society” that will consistently “progress towards civilizing relations between states through constitutional law.”[79] Citizens’ attachments to the state give “motivational pressure to find agreement” and to seek progress.[80] Central to this theory is the notion that a just democratic state is inconceivable without the consistent commitment of the citizens to constitutional principles. Prima facie, this seems to be a benefit of constitutional patriotism: there is no inherent complacency in the status quo that would impede efforts to better accommodate justice and democratic ideals. However, on a much more fundamental level, constitutional patriotism is not merely the accommodation of improved norms; rather, the validity of constitutional patriotism relies on the mechanism of progress. Kleingeld argues that a “love of shared political freedom” implies a duty to “sustain” the constitutional state through “commitment to its institutions.” Maintaining this constitutional order requires the “patriotic act” of consistently criticizing the body politic and finding ways to “enhance the common political good by calling for reforms.”[81] The European project of integration is not only an ongoing process but also its so-called incompleteness demands progress.

Yet, constitutional patriotism’s assumption of progress contradicts the Enlightenment’s skepticism toward progress. The three primary social contract theorists—Hobbes, Locke, and Rousseau—each rejected linear conceptions of time. Locke has no theory of progress, and Hume’s attempt to vindicate custom is part of a larger project to “change no circumstance in the received orthodox system.”[82] Rousseau’s Second Discourse stresses retrogression insofar as progress further entrenches civilization in inequality, and “the more we accumulate new knowledge, the more we deprive ourselves of the means of acquiring the most important knowledge of all.”[83] Peter Gay has even argued that a careful reading of the Second Discourse reveals Rousseau’s belief in an inevitable degeneration of all forms of government.[84] Therefore, constitutional patriotism’s call to consistently reform and progress the liberal democratic order seems to contradict Rousseau’s fear of progress giving way to inequality. Hobbes only defends progress insofar as it leads to a stable and inert social contract. There is no “progress” from the Hobbesian social contract because the terms are non-negotiable; however, there is decline such that the contract may devolve into the state of nature, leaving all parties worse off. Burke, while not opposed to change a priori, argues that any progress ought to be weighed against the meaningful tradition that precedes it, and change that seeks to wipe away the institutions inherited by society is morally abhorrent and not “chivalric.” However, Burke’s argument that reasonable change is permissible is not a concession that progress is inevitable; rather, it is a mood that allows for reform, not an attitude that progress is inherent in history.[85] Thus, constitutional patriotism’s underlying tendency toward progress seems to be at odds with the Enlightenment’s skepticism toward such a phenomenon.[86]

 

Conclusion: “East is East and West is West”?

“Oh, East is East and West is West, and never the twain shall meet,

Till Earth and Sky stand presently at God’s great Judgment Seat;

But there is neither East nor West, Border, nor Breed, nor Birth,

When two strong men stand face to face, though they come from the ends of the earth!”

— Rudyard Kipling[87] 

This paper has sought to contextualize constitutional patriotism as a guiding principle for Europe, while also eliciting constitutional patriotism’s departure from key tenets of the European Enlightenment. Borne out of West Germany’s disillusionment with its past, constitutional patriotism is a manifestation of Kantian ideals grounded in reason that seek to be universally accessible to citizens of all states. There is bountiful scholarship on the topic, from those in the Kantian universalist tradition, the communitarian “particularists,” and the compatibilists caught between these disparate views. An open question raised in this paper is whether the universal principles of constitutional patriotism can compel citizens in the European Union to join a “European” state, as opposed to any state that best upholds these constitutional values. Despite Jürgen Habermas’ claim that constitutional patriotism appeals to Europe’s communal identity derived in Enlightenment ideals, I have tried to demonstrate that prominent Enlightenment figures would likely reject the notion that constitutional patriotism upholds an Enlightenment understanding of reason or progress.

However, one further critique of constitutional patriotism warranting brief discussion is whether the European Union would likely face onerous obstacles in its implementation of this theory, specifically in the Eastern EU. As I have attempted to convey in this paper, constitutional patriotism is governed by both concrete and abstract democratic principles, from separation of powers, to federalism, to equality under the law. Yet, there is evidence to suggest that in the newest EU member states from Eastern Europe, attachment to these constitutional principles is tenuous. Over the past twenty years, several Eastern European states—Poland, most noticeably—have successfully adopted constitutional cultures and auspiciously passed the “critical juncture of regime change.”[88] Nevertheless, this fate of embracing democratic principles is not shared by all Eastern member states.

In the view of Vachudova, the EU lacked an “ingrained ‘civilizing project’” capable of molding Soviet Republics into fledgling democracies.[89] When countries such as Slovakia, Bulgaria, and Romania were in the midst of accession, the metrics of the Council of Europe and the Copenhagen criteria used to evaluate these states’ democratic inclinations failed to exercise rigor. In fact, many of the democratic reforms made were ostensibly superficial attempts to expedite integration. For example, the EU could not allow the accession of a Vladimir Mečiar-led Slovakia due to the leader’s blatant authoritarian tendencies. In turn, the EU proposed an ultimatum stipulating that it would only grant Slovakia membership if Mečiar was ousted. Though this deal visibly deposed the authoritarian leader, it was by no means a display of Slovaks exercising their democratic will; rather, this action was externally imposed, raising reasonable concern that Slovakia’s “improved” democratic condition was merely symbolic. As Table 1 illustrates, this reality reaches beyond Slovakia insofar as many former Soviet Republics in the EU have significantly lower democracy index values when compared to those of Western EU member states:

Table 1: EU Member States Democracy Index[90]

Member State Democracy Index
Norway 88.3
Sweden 87.0
Finland 86.7
Switzerland 85.9
Denmark 84.4
Netherlands 83.5
Germany 82.2
Austria 81.2
Belgium 81.1
United Kingdom 79.9
France 78.2
Spain 76.9
Portugal 75.7
Slovenia 75.4
Estonia* 73.2
Czech Republic* 71.9
Cyprus 71.5
Lithuania* 71.3
Italy 71.2
Poland* 71.1
Latvia* 69.3
Slovak Republic* 69.2
Hungary* 68.4
Croatia 68.0
Greece 67.5
Bulgaria* 65.1
Romania* 64.4
*Indicates former Soviet Republic/post-Soviet state. See footnote for further explanation.

While constitutional patriotism promises to unite European states committed to democratic principles, this challenge is redoubled by the Eastern European states’ nascent democratic mores. “Hollow and ineffective” institutions were transmitted from Western Europe to the East during the accession process, and these inherited institutions were not legitimately debated in the public sphere so as to accommodate bureaucratic efficiency.[91] Consequently, joining the European Union with superficial benchmark criteria and “reform from above” may actually harm a country’s democratic prospects. While Vachudova argues that the introduction of democracy will allow these states to learn democracy by going through the motions, Jacques Rupnik articulates that the EU’s actions on this front may be a “Blessed plot” that incentivize hasty reforms that “empty the democratic process” due to blind commitment to liberal constitutional principles and stability.[92] Simply put, the forced conditions of accession for Eastern European states is a cause for concern. These new member states have not only been handed democracy in a rather undemocratic fashion, but within the EU, these states may be relegated “to a permanent second-class status,” due to their incomplete understanding of the institutions they have inherited.[93]

Furthermore, the mere existence of democratic institutions in Eastern EU member states by no means generates democratic institutions in these countries. Jack Snyder argues that there are potentially disastrous consequences to the liberal view that “it takes very little to establish a stable, peace-loving democracy: just get the authoritarian state out of the way.” Without “thick networks of social supports” and a longstanding understanding of liberal democracy characterized by more than “a single free and fair election,” the democratic transition of Eastern Europe to the EU can invite nationalism and instability, both of which are antithetical to constitutional patriotism.[94] Without the culture of a constitution or democracy, these new member states continue to fight an uphill battle. If the EU does not take deliberate and careful steps in cultivating such a constitutional culture in Eastern Europe, the democracy gap may not improve and will further undermine constitutional patriotism’s appeal as a guiding European principle. Without an organic “love” of constitutional principles in Eastern Europe and without a legitimate embrace of Enlightenment ideals, constitutional patriotism may march on as an “Old Lie,” promising the sweetness of universal principle and patria, without the laurels of a victorious European Union, integrated at last.[95]

Joshua Altman (’17) is a Ethics, Politics, and Economics major in Silliman College.


Works Cited

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———. “Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution?’” European Law Journal 1:3 (1995): 303-307.

———. Die nachholende Revolution, Frankfurt/Main: Suhrkamp, 1990 (152).

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Endnotes

[1] From Wilfred Owen’s poem “Dulce et Decorum Est;” Harold Bloom, ed. “‘Dulce et Decorum Est,'” In Poets of World War I – Part One, Bloom’s Major Poets (Philadelphia: Chelsea House Publishing, 2001), Bloom’s Literary Reference Online, Facts On File, Inc.

[2] Jürgen Habermas, “Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution?’” European Law Journal 1:3 (1995): 303-307.

[3] Arnaud Leparmentier, “France: Europe – Taboo Subject for François Hollande,” Vox Europ, Sept. 17, 2012, Accessed on Nov. 16, 2014, <http://www.voxeurop.eu/fr/node/2708891>.

[4] Andrew Moravcsik, “Review: Despotism in Brussels? Misreading the European Union,” Foreign Affairs 80:3 (2001): 114-22.

[5] Simon Hix and Bjørn Hoyland, The Political System of the European Union. 3rd ed. New York: St. Martin’s, 1999), 87-90.

[6] Muller 2012 discusses how the debate between supranationalists and intergovernmentalists boils down to a division of normative principles defining the feasible boundaries of the state.

[7] Habermas, 1995.

[8] Hix and Hoyland; Michael Bruter, Citizens of Europe?: The Emergence of a Mass European Identity (Hampshire: Palgrave Macmillan, 2005); Patchen Markell, “Making Affect Safe for Democracy?: On ‘Constitutional Patriotism,’” Political Theory 28:1 (2000): 38-63.

[9] Hix and Hoyland, 83.

[10] Jan-Werner Müller, Constitutional Patriotism (Princeton: Princeton University Press, 2007).

[11] Markell, 15.

[12] Plato, “The Republic,” in Complete Works, trans. John Madison Cooper (Indianapolis: Hackett, 1997).

[13] Ibid.

[14] Müller, 21.

[15] Ibid.

[16] Ibid., 22.

[17] Karl Loewenstein, “Militant Democracy and Fundamental Rights II,” American Political Science Review 31:4 (1937): 638-58.

[18] Ibid., 646.

[19] Jürgen Habermas, The Crisis of the European Union: A Response, trans. Ciaran Cronin (Cambridge, UK: Polity, 2012).

[20] Richard J. Evans, In Hitler’s Shadow: West German Historians and the Attempt to Escape From the Nazi Past (London: I.B. Tauris, 1989).

[21] Ibid.

[22] Jan-Werner Müller, “A ‘Thick’ Constitutional Patriotism for the EU? On Morality, Memory and Militancy,” in Law, Democracy and Solidarity in a Post-National Union: The Unsettled Political Order of Europe, ed. Erik Oddvar EriksenChristian Joerges, and Florian Rödl, (London: Routledge, 2008).

[23] Ibid.

[24] Pauline Kleingeld, “Kantian Patriotism.” Philosophy & Public Affairs 29:4 (2000): 313-341.

[25] However, as Kleingeld points out, Immanuel Kant first proposed a European völkerbund, a league of states that promotes universalizable maxims and debates its own legitimacy. Though distinct from constitutional patriotism, constitutional Kantianism closely resembles constitutional patriotism in regards to its focus on universal values.

[26] Habermas, The Crisis of the European Union: A Response, xi.

[27] I chose these five because each was instrumental in conceptualizing the proto-constitutional underpinnings of the social contract and the Enlightenment’s views on tradition. Additionally, each author represents a different dimension of the Enlightenment. Hobbes, one of the first Enlightenment thinkers, centralized reason; Locke and Rousseau advanced Hobbes’ conception of the social contract; Hume comes out of the Scottish tradition, lending a distinct perspective and response to these views; and Burke’s Reflections serves as a transitional text between Enlightenment thought and that of Romanticism.

[28] Kleingeld.

[29] Habermas, The Crisis of the European Union, 92.

[30] Müller, Constitutional Patriotism, 29-30.

[31] Clarissa R. Hayward, “Democracy’s Identity Problem: Is “Constitutional Patriotism” the Answer?” Constellations 14:2 (2007): 186.

[32] Justine Lacroix, “For a European Constitutional Patriotism,” Political Studies 50:5 (2002): 944-958.

[33] Müller, Constitutional Reform.

[34] Ibid., 67.

[35] Ibid., 68.

[36] Jonathan Allen, “Balancing and Social Unity: Political Theory and the Idea of a Truth and Reconciliation Commission,” University of Toronto Law Journal 49:3 (1999): 315-353 .

[37] James Q. Whitman, “What Is Wrong with Inflicting Shame Sanctions?” The Yale Law Journal 107:4 (1998): 1055-1092.

[38] David Marsh, Europe’s Deadlock: How the Euro Crisis Could Be Solved, and Why It Won’t Happen (New Haven, CT: London, 2013).

[39] Jeremy Waldron, “Special Ties and Natural Duties,” Philosophy & Public Affairs 22:1 (1993): 3-30.

[40] Hayward, 187.

[41] Müller, Constitutional Patriotism, 33.

[42] Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace & World, 1966).

[43] Ibid, 473.

[44] Bruter.

[45] Ibid., 103

[46] Muller cites: Jürgen Habermas, Die nachholende Revolution (Frankfurt: Suhrkamp, 1990): 152.

[47] Ehrhard Bahr, “In Defense of Enlightenment: Foucault and Habermas,” German Studies Review 11:1 (1988): 97-109.

[48] Thomas Risse-Kappen, A Community of Europeans?: Transnational Identities and Public Spheres (Ithaca: Cornell UP, 2010), 196-197.

[49] Ibid., 194

[50] Habermas, The Crisis of the European Union, xi. Perhaps this thought gained influence from Julien Benda’s contention that a purely rationalist construct should be tacked to Europe, fully divorcing the self from the passions.

[51] Ibid., 134.

[52] Rousseau, Jean-Jacques, “Discourse on the Origin of Inequality,” in The Basic Political Writings, trans. Donald A. Cress (Indianapolis: Hackett Pub., 2011), 190.

[53] Müller, Constitutional Patriotism, 29-30.

[54] Rousseau, 175.

[55] Habermas, The Crisis of the European Union, 14.

[56] Habermas, The Crisis of the European Union, 15, 18-19.

[57] Peter Gay, “The Enlightenment in the History of Political Theory,” Political Science Quarterly 69:3 (1954): 375.

[58] David Hume, An Inquiry concerning Human Understanding: With a Supplement, An Abstract of A Treatise of Human Nature (Indianapolis: Bobbs-Merrill Educational Pub., 1955), 28.

[59] Ibid., 29.

[60] Ibid., 29.

[61] Hayward, 187.

[62] Ibid.

[63] Thomas Hobbes and E. M. Curley, Leviathan: With Selected Variants from the Latin Edition of 1668 (Indianapolis: Hackett Pub., 1994), 23.

[64] Edmund Burke, Reflections on the Revolution in France: And on the Proceedings in Certain Societies in London Relative to That Event, ed. Conor Cruise O’Brien (London, England: Penguin, 1986), 120-1.

[65] Ibid., 121.

[66] Ibid., 170.

[67] Müller, Constitutional Patriotism.

[68] Burke, 105.

[69] Ibid.

[70] Ibid., 120-121,

[71] Müller, Constitutional Patriotism.

[72] Jan-Werner Müller, “Reimagining Leviathan: Schmitt and Oakeshott on Hobbes and the Problem of Political Order,” Critical Review of International Social and Political Philosophy 13:2-3 (2010): 330.

[73] Hobbes, 109.

[74] Müller, Constitutional Patriotism.

[75]Fritz Wilhelm Scharpf, Governing in Europe: Effective and Democratic? (Oxford: Oxford University Press, 1999), 2.

[76] Hix and Hoyland.

[77] Scharpf.

[78] Habermas, The Crisis of the European Union, 2.

[79] Ibid., 7.

[80] Müller, Constitutional Patriotism.

[81] Kleingeld, 318.

[82] Gay; Hume, 97.

[83] Rousseau, 39.

[84] Gay, 380.

[85] Ibid.

[86] Though beyond the scope of this paper, many of the German idealists, notably Hegel and Kant, may be more sympathetic toward Habermas’ view. For example, Hegel’s notion of the dialectic, i.e. a process of thesis, antithesis, synthesis, seems to imply some sort of evolution of thought and improvement toward what he calls “the absolute,” the unachievable end of human inquiry. However, Hegel and Kant fit more clearly into the German idealist tradition than in that of Western Enlightenment.

[87] Rudyard Kipling, Ballad of East and West, comp. Blanche McManus (New York: M.F. Mansfield and A. Wessels, 1899).

[88] Milada Anna Vachudova, Europe Undivided: Democracy, Leverage and Integration after 1989 (Oxford: Oxford University Press, 2004), 15-21.

[89] Ibid.

[90] “Democracy Index 2012: Democracy at a Standstill” The Economist Intelligence Unit, 2013, <https://portoncv.gov.cv/dhub/porton.por_global.open_file?p_doc_id=1034>, 10-15; I winnowed the EU member states available from the Economist’s world report. The bolded values indicate states that are less than the mean value of 75.87 by greater than one standard deviation (7.29)

[91] Vachudova, 15.

[92] Jacques Rupnik, The Road to the European Union (Manchester: Manchester University Press, 2003). Print.

[93] Ibid.

[94] Jack L. Snyder, From Voting to Violence: Democratization and Nationalist Conflict (New York: Norton, 2000), 316-317.

[95] Bloom.

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