The European Parliament’s recent proposal to remove the unanimity requirement from Article 19 TFEU (non-discrimination legislation) taps into historical debates about voting and minority rights, dating back to the founding of the United States. This move, aimed at combating discrimination based on sex, racial or ethnic origin among other grounds, resonates with a centuries-old argument between James Madison and John C. Calhoun.
James Madison, considered the ‘father’ of the US Constitution, defended majority voting as essential for impartial law-making and protecting minority rights within a union of states. He argued that in unitary states, the majority’s control of legislative bodies could enable them to “be the judge of their own case” and legislate in a way that serves their interests, often at minorities’ expense. To counteract majoritarian biases, Madison suggested integrating states within a larger union, where diverse majorities could balance each other, compelling agreement on common, more egalitarian principles (Madison’s argument). Historical analyses, including cases from the Civil Rights Era, support this, showing how federal-level decisions improved minority rights compared to state-level legislations (Halberstam, others).
Conversely, John C. Calhoun, the then Vice President and an ardent defender of slavery, argued for a unanimity-based approach that aimed to preserve the existing racial hierarchy by preventing majority decisions that could lead to the emancipation of slaves. Calhoun feared that majority voting at the union level would undermine the status quo, so he advocated for “concurring majorities” where unanimity is required among states to pass legislation (Calhoun’s theory).
Applying these historical perspectives to Article 19 TFEU reveals notable parallels. Article 19’s current requirement for unanimity among EU Member States in the Council functions similarly to Calhoun’s model, by often perpetuating the status quo. The article has been instrumental in blocking progressive non-discrimination legislation since its inception, with significant legislative measures under it being exceedingly rare. The only notable success dates back to the year 2000, triggered by the “Haider Affair” (an unusual twist of political fate).
Furthermore, attempts to pass significant legislation, such as the 2008 Horizontal Directive on equal treatment, have failed due to the consensus requirement, impeding more substantial protection for minorities. This stagnation is in stark contrast with areas not bound by unanimity, such as sex equality, which has seen nine directives successfully passed. Unanimity often leads to an inconsistent and incoherent legal framework, as noted by scholars and Commission communications (Commission communications, scholarly work).
Recent deliberations following the Conference on the Future of Europe have seen renewed efforts to reform Article 19 TFEU to reflect majority voting, thus aligning it more closely with foundational principles of Western constitutionalism such as the nemo judex rule—”not being the judge in one’s own cause.” This principle, pivotal in Madison’s arguments, underscores the need for impartiality in judging, which unanimity might infringe upon. Critics argue that unanimity perpetuates a “tyranny of the few” by allowing any single Member State to block beneficial anti-discrimination measures, leading to situations where minority rights are inadequately protected at the Union level.
These proposed changes are seen as crucial for allowing the EU to better uphold the values enshrined in Article 2 TEU and to provide for more significant protections against discrimination on various grounds (European Parliament’s proposal). The historical and comparative background thus provides solid intellectual support for these much-needed reforms, emphasizing a more inclusive and egalitarian legal framework for EU minorities, reflective of the collective European commitment to human rights and fundamental freedoms.
For further insights into the intricate connections between these historical debates and current legal frameworks, the detailed analysis can be found at the source article.