The Union determined to see its law implemented at the local level. Doughty partisans fighting for the sovereignty of their state. A looming political crisis.
This is the picture evoked by the publication over the weekend of a letter to David Cameron, the British prime minister, from Bernard Jenkin MP, signed by 95 MPs. The letter called for the government to legislate for parliament to be able to opt out of EU rules “where it is in our vital national interests to do so”.
In making this proposal, the signatories were giving powerful voice to views that are very widely and sincerely held on all sides of both houses of parliament, and in the UK as a whole.
After all, the EU itself acknowledges what it delicately refers to as a “democratic deficit” – an extraordinarily tepid description of the present crisis of legitimacy that embraces such matters as its distant and technocratic management of the eurozone, a serious lack of accountability in key EU institutions and widespread voter disenchantment across the continent.
As the Jenkin letter implies, nothing less than root-and-branch reform will be adequate to address these issues. You do not have to be a believer in the basic legitimacy of the nation state to see the depth of the problem.
But is a unilateral veto the wisest way forward? The government has argued that it would open the door for other countries to do the same thing. The UK has historically welcomed the fact that the EU has often been able to deliver policies that promoted economic growth, such as the removal of trade barriers, which individual states could not or would not have delivered themselves.
There is no genuinely single market in the EU for goods, let alone services. But imagine the impact on the UK automotive supply chain if the Italians or French opted out of the single market for cars. The standard responses – “it would be contrary to the World Trade Organisation, and they need us more than we need them” – miss the mark. A dispute might not fall under the WTO, which anyway lacks direct sanctions, and the threat of opt-out alone would be enormously disruptive for the UK.
But there is a deeper point, one well illustrated by a vital moment in American history: the Nullification Crisis of the early 1830s, which arose when South Carolina obstructed the collection of federal tariffs within its borders. The evil issue of slavery loomed then over the whole debate. But then, as now, the issue was trade. Then, as now, a state sought the right to ignore rules to which it had lawfully acceded, from an urgent desire to protect its sovereignty. Then as now, the Union insisted on the primacy of those rules.
Picture the scene: John Calhoun, himself a South Carolinian, indeed the leading advocate of states’ rights, but now as vice-president presiding over the senate. In front of him, his compatriot, Senator Robert Hayne, vigorously affirming that any state unwilling to abide by a federal law could nullify it within its borders. Indeed, Hayne went further: “What interest,” he said, “has South Carolina in a canal in Ohio?”
The answer was given in an immortal speech by Daniel “Black Dan” Webster, a man whose voice could reportedly “shake the world”. Webster insisted that the constitution was the fundamental law, not of states but of a people, indeed of one people. Contrary to Hayne’s doctrine, he said: “I look upon Ohio and South Carolina to be parts of one whole – parts of the same country – and that country is my country.” For him, the cry was not union or liberty, but union and liberty.
Webster sat down with men openly weeping at his oratorical tour de force. But his speech also has huge current relevance. The US had been through a long process of unification, debated and contested at every level; the states had sought and succeeded in establishing a nation; the constitution was widely acknowledged as fundamental law. None of these things is true of the EU today. And therein lies the problem.
[This article originally appeared on FT Online on 14 January 2014]