«Securing Freedom - A Comparison of Two Constitutional Models: USA and EU»
«The Constitutional Protection of Property Rights: America and Europe»
Speech Christian Kirchner (in German)
German Patent Attorney
The conference will focus on the constitutional limits of government vis-à-vis the citizen. The aim is to compare the Constitution of the United States of America and the ‘Constitution of the European Union’ from this point of view. Each comparison serves the purpose of increasing knowledge. From a European perspective, the aim is to translate this into improvements in the constitutional regime of the European Union. This could also be of interest from a Swiss perspective. The constitutional debate in the European Union is in full swing. If the concept of a multi-optional constitution for the European Union could be successfully implemented, allowing the citizens of the member states to determine the degree of integration or centralisation/decentralisation themselves, this could make membership of the European Union more attractive for Swiss citizens. From the point of view of these citizens, a central question would then be how individual freedom would be safeguarded in a European constitutional regime. Such a constitutional regime already exists today in the form of the founding treaties of the European Communities, the Single European Act and the Treaty on European Union (in the Maastricht, Amsterdam and Nice versions).
The full text of the speech is available as a PDF here:
Speech by J.D. Roger Pilon
Senior Fellow at the Center for Constitutional Studies des Cato-Instituts
Because language has its limits, a constitution that aims at striking a principled balance between powers granted and liberties retained can go only so far in achieving that end. It is crucial, therefore, that when judges interpret and apply constitutional language to cases and controversies brought before them, they do so with an eye to the larger theory behind the language and the principles the theory entails, as reflected in the document.
As this lengthy review of the U.S. Supreme Court’s treatment of property rights has shown, we Americans have grown ever less conversant with the principles our Constitution was meant to secure, to say nothing of the theory that stands behind those principles. The police power, in particular, has been severed from its roots in the theory of natural rights to become simply a reflection of the will of those wielding political power at any given time. The cumulative effect is a growing body of public law that in far too many cases trumps the private law of property and contract, reducing it to a subsidiary role in the American legal system.
And in this brief look at the European scene, we have found similar themes, but the situation seems more fluid because both the constitutional and legal contexts are more fluid as well. It is hard to know, therefore, just where the “constitutional” protection of property rights is headed in Europe. But in both Europe and America, one can take hope from changes over the past few decades in the climate of ideas, toward greater respect for individual liberty and limited constitutional government. Sustaining those changes, however, requires constant vigilance, as Thomas Jefferson reminded us, failing which the implications for individual liberty, responsibility, and dignity are clear.
The paper of the speech is available as a PDF here:
