1 Enlargement in perspective Helene Sjursen (ed.) Copyright ARENA ISSN Printed at ARENA Centre for European Studies University of Oslo P.O.Box 1143, Blindern N-0317 Oslo, Norway Tel: Fax: Oslo, January 2005 Cover picture: Francois Boucher, The Rape of Europe,
3 Preface On 7-8 May 2004, the CIDEL consortium organised a workshop in Ávila, Spain, on Justifying Enlargement Past and Present Experiences. CIDEL - Citizenship and Democratic Legitimacy in the EU is a 3-years ( ) joint research project with ten partners in six European countries. The project is coordinated by ARENA, University of Oslo, and is supported by the European Commission s Fifth Framework Programme for Research, Key Action Improving the Socio-Economic Knowledge Base. The workshop in Ávila, which is under Workpackage 4, is deliverable no. 12 from the project. The present report is based on the workshop. Erik Oddvar Eriksen Scientific Responsible CIDEL project
5 Table of contents Introduction Enlargement in perspective Helene Sjursen... 1 Chapter 1 Arguing about Enlargement José Ignacio Torreblanca.. 13 Chapter 2 Germany and EU Enlargement: From Rapprochement to Reaproachment? Marcin Zaborowski.. 41 Chapter 3 Ifs and Buts of Spain s Eastern Enlargement Policy Sonia Piedrafita 69 Chapter 4 Between Security and Human Rights Denmark and the Enlargement of the EU Marianne Riddervold and Helene Sjursen.. 97 Chapter 5 Turkey s EU Politics: What Justifies Reform? Gamze Avci
6 Chapter 6 Prioritisations in the Enlargement Process: Are some Candidates more European than Others? Åsa Lundgren Chapter 7 The Application and Acceptance of Democratic Norms in the Eastward Enlargement Paul Kubicek Chapter 8 Probably a Regime, Perhaps a Union: European Integration in the Czech and Slovak Political Discourse Petr Drulák Chapter 9 The Role of Argumentative Coherence in the EU s Justification of Minority Protection as a Condition for Membership Guido Schwellnus Chapter 10 Summary of Papers Børge Romsloe
7 Enlargement in perspective Helene Sjursen ARENA, University of Oslo As recognised by the Laeken European Council, the European Union stands at a crossroads. The gradual strengthening of common European institutions and the inclusion of new policy areas such as social policy, security policy, justice and home affairs issues in the joint responsibility of the EU and its member states are indicators of the political nature of integration in Europe. At the same time this political nature of European integration points to the need for a clearer conception of what the EU is or should be. There is considerable uncertainty as to what type of entity the EU will become, as to what kind of order is emerging in Europe. Often, answers to these questions about the nature and characteristics of the future European order are sought by analysing the building and reforming of the EU s institutions, rules and procedures for decision-making. However, when it comes to identifying the nature of the EU it is not sufficient to look at its emerging governance structures and its basic, overarching institutional features. We must also look more closely at developments in particular policy fields. Different actors have different interests, visions and values that they wish to project onto the European level, different ideas about what the EU ought to be about. The importance and relevance of these different interests, values and visions might become more visible through analyses of the actual policies produced by the EU. Often, it is here, in the processes of determining what should be done with regard to concrete issues, that the fundamental features of the EU are actually defined. Thus, analysing the principal reasons for particular policy-decisions might contribute to a better
8 2 Helene Sjursen understanding of what kind of order is emerging in Europe. However, even more so the question of EU enlargement should be a key issue in terms of understanding the fundamental characteristics of the European Union. Surprisingly, although enlargement has been a fundamental feature of the EU since its early days, few systematic studies of its significance for European integration have been produced. Rather, enlargements have been seen as isolated episodes, which do not tell us much about the EU as such. It is quite clear, however, that the issue of membership and how it is dealt with is at the core of any organisation including the EU. In order for an organisation to find criteria for inclusion (as well as exclusion) one would expect it to have, or to be forced to form, an idea of what its fundamental purposes are. Even though answers to such questions are perhaps unlikely to have been produced in advance, one might reasonably expect that they are at least indirectly or partly confronted through the practice of enlargement. Consequently, a thorough and systematic investigation of how the EU has handled this question (across time, across different countries or regions and with regard to different policy areas) should provide valuable insights into the EU s selfunderstanding, goals and priorities. In fact, it would seem that without looking at this issue, it would be difficult to get a clear picture of what kind of order is emerging in Europe. For example, deciding where Europe stops, or should stop, is a particular challenge. It inevitably raises questions such as who the Europeans are and what kind of values characterise Europe. Furthermore, the more functional questions such as on what conditions new members should be allowed entry should also provide valuable insights. Several possibilities arise in regard to the question of what kind of order is emerging in Europe. Following the CIDEL project, 1 three ideal-types can be identified (Eriksen and Fossum 2004). Firstly, the EU might be on its way to be reduced to a mere problem solving entity based on economic citizenship. Here, membership would be derived from its discernible benefits and the purpose of the organisation would be to promote the material interests of the member states. Secondly, the EU might be moving towards a value-based community premised on social and cultural citizenship. From such a perspective the EU would be a geographically delimited entity seeking to revitalise traditions, mores and memories of whatever common European values and affiliations there are in order to forge a we-feeling as a basis for integration. A third possibility would be that the EU is moving towards a 1 CIDEL Citizenship and Democratic Legitimacy in the European Union is a research project financed by the European Commission s Fifth Framework Programme for Research. The project involves ten partners from six different countries. For more details see:
9 Enlargement in perspective 3 rights-based post-national union based on a full-fledged political citizenship. Public support would here have as its motivation a constitutional patriotism, which emanates from a set of legally entrenched fundamental rights and democratic procedures that are deeply entrenched in the collective psyche of Europeans and in the institutional framework of the European Union. Consistent with the principal hypothesis of the CIDEL project, the various contributions to this report discuss to what extent enlargement speaks to the image of the EU as a rights-based post-national union. In order to examine this, one might ask, firstly, why has the EU systematically decided in favour of enlargement? Given the costs and risks of enlargement, why has the European Union not simply chosen to remain as it is? And why have not individual member states, in particular those that expect to pay the highest price for enlargement, used their power to veto this process? The question is particularly relevant with regard to the last of the EU s enlargements, agreed upon in principle at the European Council s summit in Copenhagen in June 1993 and confirmed with the entry of ten new member states in the European Union in May If we consider that the EU is chiefly, as the first ideal type of the EU suggests, becoming a problem solving entity, where membership is derived from its discernable benefits to the member states, we would, at least at first sight, expect a veto from some of the member states. However, no member state vetoed the process. Although this would seem to weaken the hypothesis that the EU is mainly a problem solving entity, detailed analyses are required in order to investigate the extent to which this means that enlargement speaks to the second or the third ideal type of the EU. Furthermore, the question is not only that of the basis on which the EU decides to enlarge; equally important is how and in what way the decision to enlarge is implemented. How are the norms and rules of the European Union applied in the accession process? To what extent are they applied in a consistent and similar manner in all applicant states? Comparisons should be useful here in order to determine to what extent applicants receive equal treatment and to what extent there have been prioritisations of specific applicants or groups of applicants. This would tell us something about the conception of the EU that lies behind the enlargement process. Should the emphasis on the political criteria be lesser with regard to certain applicant states than others, for example, this might weaken the argument that the EU is developing towards a rights based post-national union. Finally, the extent to which the principled decisions on EU enlargement are actually implemented is also an indicator of the extent to which democratic principles
10 4 Helene Sjursen and human rights are constitutive of the EU s identity or merely cheap talk. These questions constitute a second focus in this report. Analytical approach A lively debate has developed within the academic community, in particular about the role and importance of norms in understanding the process of enlargement. It is generally accepted in the emerging literature on this question that norms must have played a part in the decision to enlarge (Schimmelfennig and Sedelmeier 2002; Sjursen 2002; Torreblanca 2001; Schimmelfennig 2001; Sedelmeier 2000; Fierke and Wiener 1999). However, to emphasise the role of norms is only the beginning. There are numerous rule-sets, norms and identities. Hence key questions are what kind of norms have been important as well as how EU norms have been applied in the accession process. A further core question is that of the mechanisms through which norms are complied with. Is norm compliance ensured through the mechanism of self-interested calculations? In other words are norms only used instrumentally, and thus functioning simply as constraints on actors (selfinterested) behaviour? Or do norms constitute the world views and preferences of actors? On which of these bases should we understand enlargement? In order to investigate these questions an analytical distinction may be made between three different types or categories of arguments that might be used to justify enlargement: pragmatic arguments, ethical-political arguments and moral arguments (Habermas 1993). 2 Each of these speaks to one of the images of the EU outlined above. In a pragmatic approach policy would be justified with reference to the output that it is expected to produce. This means that one would not expect actors to support enlargement unless arguments could be found to support the idea that it would provide utility given their interests and preferences. In an ethical-political approach justification would rely on a particular conception of the collective us and a particular idea of the values represented by a specific community. Here, one would seek to justify enlargement by referring to duties and responsibilities emerging as a result of belonging to a particular community. In a moral approach the aim would not be to justify policy with reference to calculations of utility nor with reference to the values of a particular community but to find justifications that rely on universal standards of justice, regardless of the utility of the policy to the particular actors involved in the decision or the specific values or perceptions of the good life embedded in the community outlining policy. 2 For other attempts to employ Habermas theory of communicative action to international relations see: Eriksen and Fossum 2000; Risse 2000; Müller 2001; and Lose 2001.
11 Enlargement in perspective 5 Hence, the first type of argument has much in common with the concept of logic of consequence and the second and third type of arguments are related to the concept of logic of appropriateness, although they should obviously not be conflated (March and Olsen 1989, 1998). Both concepts are developed in new institutionalist theory and have more recently been adopted in the international relations literature. 3 The logic of appropriateness does however have a certain ambiguity to it that is not resolved in the way it is employed in the current international relations literature in general and in the sociological-institutionalist literature on enlargement in particular (Sedelmeier 2000; Schimmelfennig 2001). To put it simply, the logic of appropriateness could imply both rule following as a result of habit or a particular identity and rule following based on a rational assessment of morally valid arguments (Eriksen 1999). 4 Hence, it would not be sufficient in terms of investigating whether or not the EU is moving in the direction of the second or the third of the images outlined earlier. Different criteria identify the various types of arguments: utility, values and rights (Sjursen 2002). Utility refers to an effort to find efficient solutions to concrete problems or dilemmas. Policymakers seek legitimisation by achieving an output that could be seen as beneficial to given interests and preferences. Values refer to a particular idea of the good life that is grounded in the identity of a specific community. Policy would be legitimised through reference to what is considered appropriate given a particular group s conception of itself and of what it represents. Rights refer to a set of principles that are mutually recognised. In other words, policy would be legitimised with reference to principles that, all things considered, can be recognised as just by all parties, irrespective of their particular interests, perceptions of the good life or cultural identity. A focus on arguments and reasons will only make sense if we can from the outset be reasonably certain that actors have not been forced through economic or military means to make a particular decision. This seems a safe assumption in the case of the European Union s enlargement process. Perhaps more contentious is the assumption that individual member states have not been forced by other more powerful members to commit themselves to enlargement. Yet, given that the EU is an organisation that is bound by legal rules it is difficult to imagine that individual member states have been faced 3 Two often quoted international relations texts building on the new institutionalist perspective are, Cowles et al 2001 and Stone Sweet et al Thus Eriksen (1999) suggests a third logic that he calls a logic of moral justification. This is similar to Risse s (2000) category of logic of arguing.
12 6 Helene Sjursen with direct threats of use of force unless they agree to an expansion of the EU. Furthermore, as enlargement is decided by consensus member states can not be forced to accept the policy through voting procedures either. The relevance of such analyses, as well as the credibility of their findings, might also be questioned on the grounds that there is often a considerable gap between what policy-makers say and what they actually mean. There could in other words be a hidden agenda involved. This can to some extent be controlled by examining the consistency of the arguments presented (both consistency between different actors and consistency in the arguments of a particular actor). A further, and more obvious, credibility control is that of whether what is said and what is actually done corresponds. Most importantly, however, is it that the true motives of the actors involved may not be crucial. As rational choice theorists argue, it is impossible for us to reach into the hearts and souls of policy-makers and thus to uncover their real or sincere beliefs and convictions. For methodological reasons it is simply assumed that actors are egotistical and self-interested, that they are motivated by the aim of maximising self-interest, and furthermore by considering these interests as exogenous to the analysis. The analytical framework briefly sketched here seeks to extend the range of possible rational arguments or reasons at the actor s disposal. What is important is that the arguments and reasons in themselves are such that other reasonable actors can support them, in other words that these are arguments and reasons that are considered legitimate or reasonable, and that as a consequence can lead to agreement on a policy. These arguments do not have to be valid by universal standards. Neither do they have to be the result of a deeply felt conviction on the part of the author. But they have to be able to mobilise support. The condition for this support is that the arguments are considered legitimate. The advantage of such an approach is to leave it open to empirical research to determine whether or not political processes can be seen to contain something more than considerations of utility and interest maximisation. Thus, the aim is not to reject or undermine the importance of such dimensions in political processes but to try to improve our understanding of such processes by introducing two further dimensions - a value dimension and a rights dimension - into the analysis. Consequently, references to utility are only one way in which the decision to enlarge might be justified and thus one reason why the EU decided to enlarge. An important task is to assess whether or not the two other ways of justifying policy might have contributed to this decision.
13 Enlargement in perspective 7 In this report we have sought to investigate the question of whether these arguments played a more important role than the argumentation based on utility. The report is the result of a workshop organised in Ávila, Spain in May 2004 and the articles published here are revised versions of most of the papers presented there. The report should be seen as a first step towards tackling the questions raised above. Further research than what has been possible in these pages, refining the analytical categories as well as strengthening the empirical documentation, is required. As a general starting point for the individual contributions, three hypotheses about enlargement were suggested, based on the ideal types of the EU developed in the CIDEL project. The main hypothesis, consistent with the conception of the EU as a rights-based post-national union, was that: - The EU enlarges based on a concern to protect universal principles of human rights and democracy, and would prioritize enlargement to those states that would make this possible. A first alternative hypothesis was that: - The EU would prioritise enlargement to states where the economic benefits of enlargement were considered particularly high. This would suggest that the EU is chiefly a problem solving entity whose principal purpose is to promote the material interests of the member states. A second alternative hypothesis was that: - The EU would prioritise enlargement to states towards which it had a particular sense of kinship based duty. This would suggest that enlargement is not only a matter of rights but also a matter a values, and that a sense of common identity, however thin, is emerging in the EU. The report starts with a brief look back in time, with José I. Torreblanca s review of the development of the enlargement acquis. His comparison with past enlargements is conducted in order to assess to what extent the role of norms, and the emphasis on democracy, is a new invention in the European enterprise, and thus particularly visible in the last round of enlargement, or
14 8 Helene Sjursen rather if it is a long term trend. Subsequently, we examine three member states (Germany, Denmark and Spain) and their positions on the latest enlargement. Similarly, we look at perspectives in the applicant states, with a particular emphasis on Turkey, the Czech Republic and Slovakia. The aim of these country specific papers is to achieve a clearer view of what kind of understanding of the EU that emerges from their positions. Why did they support enlargement, or refrain from preventing it? Whereas Germany and Denmark are usually identified as drivers in the enlargement process, Spain on the other hand, is conventionally considered to have been reluctant to accept new member states. Clearly, Spain had little to gain from enlargement in economic or security terms. In fact, the country was expected to loose out in material terms, given the fact that its relative wealth inside the EU would increase as a result of the entry of poorer member states. Consequently, Spain would have to expect fewer transfers from the EU budget. However, Spain never vetoed enlargement to Central and Eastern Europe. This is the puzzle that Sonia Piedrafita examines in her paper. With regard to the drivers in the enlargement process, Denmark and Germany, it is usually argued that they promoted enlargement due to expectations of material gain. However, the two papers in this report suggest that this is, at best, only part of the story. Marianne Riddervold and Helene Sjursen find that in the case of Denmark s position on enlargement economic considerations have little explanatory value. Security considerations on the other hand did play a part, however they cannot on their own explain why Denmark was one of the main drivers in the enlargement process, as the Danish position also entailed security risks. Rather, a sense of duty to solidarity appears to have triggered Denmark to support enlargement. Likewise in the case of Germany, Marcin Zaborowski highlights the adherence to multilateralism as a core organising principle for European relations as crucial to the country s enthusiasm for enlargement. Hence a first cut at studying member states perspectives seems to suggest that a picture of enlargement as driven by states with a particular material interest in enlargement is insufficient. This also links to a different conception of the EU than that captured by the problem solving ideal type. Turning to the applicant states, Petr Drulák discusses the conception of the European Union as a problem solving regime or a rights-based union in Slovakia and the Czech Republic. He finds that in particular in the Czech Republic it is possible to see a clear tension between those conceiving of the EU as primarily a problem solving entity and those emphasising its role as a rights-based union. However, the case of Turkish candidature is perhaps particularly crucial in terms of discussing what enlargement can tell us about various conceptions of the EU. We know from previous research that the arguments and reasons presented in favour of enlarging to Central and Eastern
15 Enlargement in perspective 9 Europe have differed from those presented in favour of enlargement to Turkey (Sjursen 2002). With regard to the former, the EU has systematically emphasised the duty to unite Europe and the sense of commonality with the applicant states. With regard to Turkey, such arguments have rarely been heard. Rather, strategic considerations have been in focus when enlargement has been justified. However, at the same time, the decision of December 2004 to open negotiations with Turkey on 3 October 2005 confirms the idea that the normative basis of the EU carries cosmopolitan elements and suggests that arguments for excluding applicant states that refer to religious differences have not been considered legitimate. Finally, how consistent has the emphasis on the political criteria been in the different applicant states and across different issue areas? Four papers examine this issue. Gamze Avci investigates the extent to which democratic reform in Turkey has taken place according to a process of learning where the validity of arguments have played a particular role and where domestic actors have justified the need for such reforms with reference to their value and standing in themselves and not only as necessary means to achieve the objective of membership in the EU. Åsa Lundgren examines the EU s own emphasis on democratic reform in its relation with Turkey. Paul Kubicek conducts a comparison of transition in Slovakia, Latvia, Poland and Romania, examining how norms and rules were applied as well as the extent to which democratic norms have taken root in the applicant countries. The last paper in this report discusses the issue of consistency in political criteria through a focus on the particularly thorny issue of minority rights. Guido Shwellnus asks to what extent and in what ways the EU s position on this issue challenges the core hypothesis of the CIDEL project that the EU is developing towards a rightsbased post national union. In addition to the written papers published in this report Thomas Christiansen, Erik Oddvar Eriksen, John Erik Fossum, Alexandra Gheciu, Geoffrey Harris, Agustín José Menéndez, Andrea Ott, Børge Romsloe, Karen Smith, Gracia Trujillo and Hakan Yilmaz participated in the workshop and acted as discussant and critical interlocutors. I would like to thank all of them for their valuable input to the workshop. Particular thanks go to Geir Kværk and Majken Thorsager for highly effective and precise administrative and editorial assistance.
16 10 Helene Sjursen References Cowles, M. G., Caporaso, J. and Risse, T. (eds.) (2001): Europeanization and domestic change: transforming Europe, Ithaca: Cornell University Press. Eriksen, E.O. (1999) Towards a logic of justification. On the possibility of post-national solidarity, in Egeberg, M. and Lægreid, P. (eds.): Organizing Political Institutions. Essays for Johan P. Olsen, Oslo: Scandinavian University Press. Eriksen, E. O. and Fossum, J. E. (eds.) (2000): Democracy in the European Union: integration through deliberation? London: Routledge. Eriksen, E. O. and Fossum, J. E. (2004): Europe in Search of Legitimacy: Strategies of Legitimation Assessed, International Political Science Review 25 (4) (October 2004), pp Fierke, K. and Wiener, A. (1999) Constructing institutional interest: EU and NATO enlargement, Journal of European Public Policy 6 (3) pp Habermas, J. (1993): On the Pragmatic, the Ethical, and the Moral Employments of Practical Reason, in Justification and Application: Remarks on Discourse Ethics, Cambridge, Mass.: The MIT Press. Lose, L G. (2001): Communicative action and the world of diplomacy, in Fierke, K. and Jørgensen, K. E. (eds.): Constructing international relations, New York: ME Sharpe. March, J. G. and Olsen, J. P. (1989): Rediscovering Institutions: the Organisational basis of politics, London: Collier Macmillan Publishers. March, J. G. and Olsen, J.P. (1998): The institutional dynamics of international political orders, International Organization 52 (4) pp Müller, H. (2001): International relations as communicative action, in Fierke, K. and Jørgensen, K. E. (eds.): Constructing international relations, New York: ME Sharpe. Risse, T. (2000): Let s argue! Communicative action in world politics, International Organization 54 (1) pp Schimmelfennig, F. (2001): The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern Enlargement of the European Union International Organization 55 (1) pp Schimmelfennig and Sedelmeier (2002): European Union Enlargement Theoretical and Comparative Approaches, Journal of European Public Policy. Special Issue 9 (4).
17 Enlargement in perspective 11 Sedelmeier, U. (2000): Eastern enlargement: risk, rationality, and rolecompliance, in Cowles, M. G. and Smith, M. (eds.): The State of the European Union: Risks, Reform, Resistance, and Revival 5, Oxford: Oxford University Press. Sjursen, H. (2002): Why expand? The question of legitimacy and justification in the EU s enlargement policy, Journal of Common Market Studies 40 (3) pp Stone Sweet, A., Sandholtz, W. and Fligstein, N. (eds.) (2001): The institutionalization of Europe, Oxford: Oxford University Press. Torreblanca, J.I. (2001): The Reuniting of Europe. Promises, negotiations and compromises, Aldershot: Ashgate.
19 Chapter 1 Arguing about enlargement José Ignacio Torreblanca UNED Introduction 1 More than two hundred years ago, when defending the US Constitution in The Federalist Papers, James Madison noted the fact that the Articles of Confederation of 1777 had not made any reference to the eventual establishment of new States or the procedures for accession of new members into the Confederation. As Madison lamented, decisions on this realm had been left at the discretion of the nine States. 2 However, earlier in 1784, some years before the Constitution was drafted, Thomas Jefferson had headed a committee which produced a Report of Government for Western Lands which proposed a plan for dividing the western territories, providing a temporary government for the West, and devising a method for new western states to enter the Union on an equal basis with the original states. The debate on the accession conditions of new members emerged again at the time of the Constitutional Convention of 1787 when Gov. Morris and Sherman argued against conferring the new territories which may join the Union later on equal rights than those the founding members were granting 1 Thanks to Sonia Piedrafita and Gracia Trujillo for their most valuable research assistance, suggestions, observations and comments. I thank also all the participants of the CIDEL workshop (Avila 7-8 May 2004), and specially Karen Smith, Helene Sjursen, Erik O. Eriksen and John Erik Fosssum for their valuable comments and suggestions. 2 Madison, The Powers Conferred by the Constitution, The Federalist Papers No. 43.
20 14 José Ignacio Torreblanca to themselves. Jefferson and Madison opposed the motion, insisting that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with other States. 3 Jefferson and Madison set the basis of the westward expansion of the United States. But more importantly, they ensured that this expansion would be governed by the principle of equality and non-discrimination. A few years later, in 1787, the so-called Northwest Ordinance, regulating the government of all western territories north of the Ohio River and, above all, the principle of the equality of acceding states, was adopted thus putting an end to the dispute. Jefferson and Madison s arguments prevailed not because there was any voting, or because Jefferson and Madison were more powerful than Morris and Sherman (which they were not). If Jefferson and Madison s arguments prevailed it was because they were superior in factual and normative terms to Morris s and Sherman s. Treating the new members differently, Jefferson and Madison convincingly argued to the Constitutional Convention, would be both unfair and dangerous for the legitimacy and stability of the Union. Whereas treating new members equally could be justified in terms of democratic equality and fairness, treating them differently could hardly be justified. 4 Faced with the need to devise principles to handle a situation which had not been confronted before, and for which clear norms were lacking (accession of new states), actors resorted to arguments rather than threats, decided to argue rather than to bargain and, ultimately, solved the issue by referring to commonly accepted standards of democratic legitimacy and fairness. At the end of the day, the results obtained by using a logic of justification and a high standard of democratic legitimacy proved to be more efficient and more fair than those which could have been eventually been reached had the logic being applied been a logic of utility or self-interest maximization. Despite the difference between the westward expansion of the US and EU enlargement processes, the theme of the consistency of arguments related to enlargement decisions is quite familiar for Europeans. For more than forty years now, Europeans have been examining the consistency of arguments in favour or against enlargement, and discussing the principles which should 3 If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt, which shall be then subsisting (James Madison, The Debates in the Federal Convention of 1787, available at ). 4 I thank Jon Elster for this inspiring analogy and for his comments on how arguing applied then and now when dealing with enlargement.