The EU thread

[Admiral Yi]

If it's a constitutional rule or quasi-constitutional rule as in Germany and the EU (where it's in the treaties) it isn't a policy goal.

It was included in the constitution in furtherance of policy goals at the time.

Are we having a meaningless semantic debate?  Policy goal to me is just another way of saying desired result. 

[Sheilbh]

It was included in the constitution in furtherance of policy goals at the time.

Are we having a meaningless semantic debate?  Policy goal to me is just another way of saying desired result. 

Maybe.

A constitution to me is the ground rules of politics (and I'm generally very, very suspicious of having to many of those rules). I don't think constitutional amendments are the way to achieve policy goals - they are (or should be) for a higher purpose. The bar to changing them is higher and for them to have legitimacy they require broad general consensus.

Policies operate within those rules. The way to achieve policy goals is normal legislation and executive action (within that constitutional framework).

And I would like to say that I am both sides on this. I don't really support hiving policy objectives of left or right into constitutional documents. For it's for the how and why of politics, not the what.  (Edit: And I think it moves what should be a policy debate: "should we have a deficit to increase spending on Ukraine and energy transition" into a legal debate of whether or not it is allowed - and the adjudication moves from democratic decision-making by voters and legislators to the courts.)

[Admiral Yi]

The other side of the argument is that the broad electorate, if left unconstrained, will always engage in short term thinking and vote themselves free money, with the disastrous consequence of default.  An assumption which I think is amply supported by modern history.

And to extend the debate, isn't that the entire justification for having a constitution in the first place?  That if voter choice is unconstrained, they will do something stupid and destructive?

replace "always" with "tend to"

[Sheilbh]

We're back to the democracy v anti-democracy debate. Which is fair enough - it's been with us since the Greeks I don't buy the Greeks or the founders argument that is suspicious of the "mob" risk of democracy. It is however disguised an argument for some form of oligarchy or other power base and I'm not sure their record is significantly better (hunting for glory etc).

I am not convinced by the argument that modern history shows courts to be better at protecting the rights and freedoms of individuals, or democracy itself than a democratic public. It may well be the case that on certain policy measures a legal or other type of technocratic elite can deliver very impressive outcomes (obviously Lee Kuan Yew - I think the's also an argument in that direction for the Chinese Communist Party since Deng). But there are also many examples of those groups failing - history is littered with failed technocrats, modernisers and enlightened despots.

This is also partly why I'm suspect of policy goals in constitutions. If the measure is what has been achieved v how and why, I think that leads in a concerning direction - for example I can't help but wonder if we are approaching a point where certain state decisions could almost be determined in an optimal and most fair way algorithmically, which might absolutely meet the what test. You could smooth out the conflict, set the parameters of the algorithm from you constitutional debt rules and your constitutional duty to protect the rights of the child (Ireland 2012) etc and let it play out. In EU debate terms, in balancing output legitimacy v input legitimacy - I don't think we should build systems around output legitimacy too much (not least because I think that's brittle).

There is a question of where power should lie in order to determine the limits of politics. I am very much in political constitution camp - that the limits should be determined politically and that, to nick another German phrase, we should dare more democracy. I think it is striking in the US with Trump that the most effective resistance both institutionally and at the level of policy came not from national politics, the courts or the civil service ("this anonymous NYT op-ed will matter") - but from America's deep democracy at the state, city, county local level. The challenge with the mob is that they're difficult to control and might do something crazy; the problem with elites is that they're supine and won't.

I don't know that modern history amply supports that idea - or that default is really the worst thing we can consider.

My broad view is that the world is uncertain and becoming more uncertain (I hope it won't happen in my lifetime but there'll be another pandemic, climate events and their knock-on effects are the new normal, geopolitics matters again etc). I don't know that democracy necessarily delivers the best results, but I think it tends to be the most able to change and adapt to the times and challenges which I think should be an advantage. And is why I think one of the problems we have is that I think a lot of democratic states have shirked responsibility in recent years (in the name of good, liberal, limited power, technocratic ideals) to such an extent that it is mere managerialism - and I think we're in an age that needs a bit more of the FDR style bold, persistent experimentation. And can, hopefully, draw upon the input legitimacy of an empowered people not just the output delivery of a state meeting its KPIs.

[Admiral Yi]

But constitutions are created through democratic processes, at least in democratic countries.  The US Federal Reserve Bank was granted independence by the democratic process after the electorate was convinced they were not very good at performing the balancing act required to optimize money supply.  The Justice Department is in theory supposed to be immune to political pressure because we believe justice is best served by the technocrats and not the mob.

As to whether default is a big deal or not, I guess one of us gets to say I told you so when it happens to one of us.

[Admiral Yi]

One other thing I forgot to include: the people who want to send German aid to Ukraine (I'm one of them) could achieve that goal by establishing a national emergency fund.  Pretax oneself to spend on future unforseen events.  Win win.

[HVC]

People are too dumb for unfettered democracy. See Trump voters.

[Sheilbh]

But constitutions are created through democratic processes, at least in democratic countries.  The US Federal Reserve Bank was granted independence by the democratic process after the electorate was convinced they were not very good at performing the balancing act required to optimize money supply.  The Justice Department is in theory supposed to be immune to political pressure because we believe justice is best served by the technocrats and not the mob.

As to whether default is a big deal or not, I guess one of us gets to say I told you so when it happens to one of us.

Are they? Some constitutions are created through democratic means. But many constitutions are created in a "constitutional moment" - an event that requires some sort of reset. For example, independence, occupation, revolution, coup - I think it's relatively rare for democratic states to replace or create their constitutions anew through democratic means. They are normally products of crisis. And there is, of course, an awe-inspiring confidence in any constitution binding not just themselves but future generations - few constitutions are contingent and subject to re-ratification. I think their legitimacy is, instead, often tied to that moment of crisis and that generation of founders.

Although I think there is an argument that constitutions actually aren't created by the writing or even ratifying, but through the interpretation of the living. It's a bit like the house that gets re-built constantly - how many bits need to be replaced while you can still call it the same house. Part of that process is democratic through living politics, other parts are not like the interpretations of the courts. But that practical living of a constitution is how it is re-ratified and democratically legitimised.

I think there are areas where technocracy works. I'm not sure they're fixed. Technocracy works are ones where there is a high level of technical expertise required and a broad degree of consensus on the desirable outcomes. That broadly applies, for now, to central banks (I think that may become contested in the future - as, in the past, the role of central banks has been contested). And there is an alternative story - that the functions of central banking was being performed but by a few big banks (especially JP Morgan) and New York. That the consensus was formed not because the electorate finally realised they were too stupid but because it was a coalition of moving power from private to public hands, distributing it around the US while insulating from too much democratic turmoil.

One other thing I forgot to include: the people who want to send German aid to Ukraine (I'm one of them) could achieve that goal by establishing a national emergency fund.  Pretax oneself to spend on future unforseen events.  Win win.

Right but to me that means either regular states of emergency related to Ukraine or sort of looking for loopholes. For me a constitutional requirement should be pretty solid and principle driven - having regularly to subvert the intent of a constitutional rule to meet legitimate political goals seems to me exactly the problem. And a dangerous precedent: assume bad people win office and we've now established that it's a rule you follow in letter not spirit. Does that apply to all the constitution? Why just this bit?

People are too dumb for unfettered democracy. See Trump voters.

Of course, in an unfettered democracy they've never won a majority so would have lost in 2016

[HVC]

Fetters kept someone like him from running for 250 years

[Admiral Yi]

Are they? Some constitutions are created through democratic means.

The German one we've been discussing was.

Right but to me that means either regular states of emergency related to Ukraine or sort of looking for loopholes. For me a constitutional requirement should be pretty solid and principle driven - having regularly to subvert the intent of a constitutional rule to meet legitimate political goals seems to me exactly the problem. And a dangerous precedent: assume bad people win office and we've now established that it's a rule you follow in letter not spirit. Does that apply to all the constitution? Why just this bit?

I don't understand this.

[Sheilbh]

The German one we've been discussing was.

The German one written in 1949? I'd put that one under the created under occupation camp.

I think the intent, and why it's Basic Law and not a constitution, was that it would be revised on reunification. My understanding, and I could be totally wrong, is that it on a purely technical legalist level is still provisional rather than a constitution. I'm not sure about the formal process of East Germany acceding to the Bundesrepublik with the Basic Law - I think it'd be quite interesting to read about though so might look that up

I don't understand this.

Which bit?

[Admiral Yi]

The German one written in 1949? I'd put that one under the created under occupation camp.

I think the intent, and why it's Basic Law and not a constitution, was that it would be revised on reunification. My understanding, and I could be totally wrong, is that it on a purely technical legalist level is still provisional rather than a constitution. I'm not sure about the formal process of East Germany acceding to the Bundesrepublik with the Basic Law - I think it'd be quite interesting to read about though so might look that up

Was it not written and voted in by democratically elected Germans?  Was it not ratified by the German people?  These are honest questions.  I'd always assumed yes but now that it comes up I don't know for sure.

Similarly with East Germany.  Did they have a say, like a referendum, or was it more like an annexation.

Which bit?

The whole thing?

[Sheilbh]

Was it not written and voted in by democratically elected Germans?  Was it not ratified by the German people?  These are honest questions.  I'd always assumed yes but now that it comes up I don't know for sure.

There were democratic processes for sure. So I could be totally wrong I think the state "legislatures" elected representatives to the drafting committee and then the state legislatures endorsed the Basic Law. But those state "legislatures" are to an extent advisory in the context of the allied occupation zones and administrators from France, UK and US - and it is in the context of hundreds of thousands of occupying troops.

My understanding is the Western allies basically gave a framework to those elected representatives to work within when drafting a constitution. I think there was some degree of sign-off as well, so if the occupying powers were not happy with provisions they either had a veto or could remove them.

What's really interesting though is that, from my understanding, many, many West German politicians and people did not want the Basic Law or any constitution at all. The German Historical Museum in Berlin is mostly closed for renovations but they've got a temporary exhibition on "turning points" and there's a couple around this time. Because many, many Germans do not want their country divided and writing a constitution for the areas occupied by the Western powers in effects institutionalises the split - I think this is around the time that Stalin makes his offer (which you can read however you want) of a disarmed, democratic, neutral, unified Germany) which the Western allies oppose and doesn't happen. Many Germans in the West wanted that. I believe that's part of the reason Germany ends up with a "provisional" Basic Law rather than a constitution - it allowed space for the aspiration to unification.

Italy's a really interesting counter-point though - because (as in the war) Italy's a bit of a sideshow. But also there were huge amounts of anti-fascist partisan fighting in Italy. So there's no "de-fascistification" in Italy. They very quickly have a referendum on monarchy or republic. They elect a constituent assembly which basically requires the (anti-fascist) Christian Democrats and Communists to do a deal. The outcome is what Italian commentators, lawyers, historians still refer to as the most "elegant" constitution in the world - everything's really very balanced, power is distributed, there's lots about  the rights of workers and the family. And it is, I think, one of the world's only explicitly anti-fascist constitutions because it was basically written by the intellectual wing of the partisans. Needless to say FdI is very explicitly anti-constitutional and wants to "reform" it in part because it fundamentally de-legitimises their politics.

But it's really interesting because it's so much less influenced by the allies - Italy's a sideshow, there are armed partisans on the edge of civil war and the Communists need to be brought in in a way that isn't the case in West Germany. But also how the understanding of the constitution as this anti-fascist bulwark built by the left and anti-fascist right is a really big part of its legitimacy.

Similarly with East Germany.  Did they have a say, like a referendum, or was it more like an annexation.

I think annexation is wrong - there are certainly people on the hard-left who talk in those terms.

My understanding is that East Germany acceded to West Germany's legal framework in order to form Germany, rather than both West and East Germans having a constitutional convention to create Germany. I don't know on the actual process or reason for that approach. I can't help but wonder, given that Thatcher, who went mad over this, and Mitterrand, who used it to get the Euro, were both very, very anxious about German reunification and a convention to debate "Germany" might have caused conniptions But I think there are queries about this now - there are novels by East German writers and I think they have flagged a feeling of loss/becoming "second class" less citizens who just became part of West Germany - and AfD and BSW voters both very strongly feel that the East is treated as "second class".

Edit :And of course this is framed by retrospection. It is the looking back of writers and people 30 years after the event. It perhaps may have been different in 1990 but, from my understanding, we don't necessarily know.

The whole thing?

Okay, I'll try again

My general view about constitutions is that everyone should be looking to comply. If it is too political it makes the operation of normal politics difficult because everything is constitutional and if it is too prescriptive it makes all procedure constitutional.

I think debt rules fall into the category of both. Tax and spending power is normally the base of democratic politics. And crises are regular (just not predictable) that may require extra spending or tax cuts for various reasons. Or it could simply be shifts in in-year accounting in the Finance Department or short-term shifts require a change because they have constitutional impacts?

On the one hand you could, in effect, ignore it. Or get around it through accounting tricks where the debate around policy decisions moves from being about the thing itself, to whether you can do it off-book or not. Or use the emergency exceptions. If you are regularly having to declare states of emergency to do normal politics of responding to crises, that is a problem.

But I think all of those have a problem because the constitution is no longer a document that you are trying to comply but one that you are regularly working to get around. I think that's not a good thing - and I think precedent matters. You'd be able to say "the other side did it" because non-compliance/working around the constitution gets baked into politics.

[Jacob]

Looks like Germany is excluding Swiss arms manufacturers from future tenders - and that other European countries are considering similar measures: https://www.watson.ch/international/wirtschaft/254669912-deutschland-will-keine-ruestungsgueter-mehr-aus-der-schweiz

Germany no longer wants military equipment from Switzerland
A letter from Germany is causing quite a stir. It states that Swiss companies are excluded from applying for procurement from the German armed forces.

A Swiss company wants to take part in a large German tender for 100,000 stationary multispectral camouflage equipment for the German army. The catch: the company's production facility must be located on EU territory, the tender states.

A mistake, the company thinks. The European Free Trade Association EFTA with Switzerland, Liechtenstein, Iceland and Norway has probably been forgotten. It turns to the Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support.

Then comes the sobering realization: the EFTA states have by no means been forgotten. The company consciously decided to have a production site in the EU and will not deviate from that.

Letter explains German "Lex Switzerland"

A short time later, a letter from Germany to the Federal Office for Armaments (Armasuisse) provided clarity, which was reported on by "Le Temps". The Federal Office, which is subordinate to the Federal Ministry of Defense, announced that it wanted to avoid an effect similar to that of the ammunition for the Gepard anti-aircraft tank when procuring the weapons. A production facility in the EFTA states was deliberately ruled out. The multispectral camouflage equipment was one of the key technologies for the Bundeswehr. In addition, it must be possible to pass it on to a partner country in the event of war.

The German Federal Office's letter referred to the squabble between Germany and Switzerland over 12,000 rounds for the Gepard anti-aircraft tank. Germany wanted to pass them on to Ukraine. It had bought them in Switzerland and needed the country's blessing because of a non-re-export declaration. The country said no for reasons of neutrality.

The letter is proof that there is a "Lex Switzerland" in Germany: The country no longer buys arms products from Switzerland. Armaments chief Urs Loher put it bluntly in "Le Temps": "Germany no longer trusts Switzerland. In the German parliament, for example, 'Swiss Free' is apparently used in the same breath as 'China Free'."

The Dutch parliament has already decided not to buy any more military equipment from Switzerland. Similar considerations are also being made in Denmark and Spain. The VBS is not yet clear whether the German letter is a warning shot or just the beginning.

Citizens blame themselves

The situation has led to mutual blame among the bourgeois parties. "We are in the process of definitively destroying the Swiss arms industry," says FDP President Thierry Burkart. The left has been working towards this for decades by tightening the War Material Act. "The SVP is now the executor of this law because it is preventing the transfer of arms from European states to Ukraine by misinterpreting our neutrality."

In 2022, Burkart submitted a motion demanding that a non-re-export declaration be waived entirely if the delivery is made to states that are committed to our values. "It has nothing to do with neutrality if other countries want to support each other with weapons that they bought in Switzerland years ago."

The SVP is passing the hot potato on to the centre. "The damage was caused by the tightening of the War Material Act," says President Marcel Dettling. "The centre is to blame for this with its back and forth: it tightened the law with the left, but wanted to go back after the war broke out." Without the tightening, the export authority would have remained with the Federal Council. "This policy lacks longevity."

The SVP was against tightening the law, but then did not want to make an exception for Ukraine because it was not prepared to deliver to war zones. "Now we are offering to ensure that countries that have bought military equipment in Switzerland are allowed to export it again after a period of five years."

The center is holding the government accountable. "The Federal Council can, on its own initiative, authorize the export of weapons purchased in Switzerland to other countries, based on Articles 184 and 185 of the Federal Constitution," says President Gerhard Pfister. "The general tightening of the arms export law still allows this. But the SVP-FDP Federal Council does not want to do this." And Parliament has so far not succeeded in finding a solution that can gain a majority.

Pfister counters the SVP accusation with a counter question: "Why is it now opposing the delivery of protective vests on grounds of neutrality, but wants to allow the re-export of weapons?"

The Swiss company now wants to produce in an EU country. (aargauerzeitung.ch/lyn)

[PJL]

I didn't know Switzerland had arms manufacturers. I though they all died out when the pike became obsolete.