POL 5032WEEK VII

Interpreting European Law and the Regional State: Are Calhoun, Clay and Webster relevant today?

Questions:

a). Will judicial power remain at the nation-state level, or will the European Union merge into a federal institution?

 b).  Can we compare the early debates within the United States on federalism with current judicial debates within the European Union?

 c).  How does the ECJ compare to the US Supreme Court?

 As evidenced by the Maastricht Treaty and Lisbon Treaty preambles, Europe seeks to “create” and “to continue the process of creating an even closer union among the peoples of Europe.”  In effect, these preambles seek to form a federation similar to that of the United States, by attempting to further consolidate and centralize power.  In contrast many of the member States of the European Union have shown resistance through their national and constitutional courts, ‘to this ever closer union,’ as they wish to remain within a looser system of allied nation states.  Thus we have to view the European Union, regardless of the rhetoric, as a regional entity that is pulling in two directions. 

 On the one hand we have the European Court of Justice (ECJ), which has transformed itself from a weak institution with little enforcement capabilities, into one of the strongest political actors in Europe and the leading proponent of European integration today. The ECJ has decided on a series of cases that have closely followed the foundational cases decided by Justice Marshall and the US Supreme Court.  Like the US Supreme Court, the ECJ has attempted to federalize the European Union by not only asserting the supremacy of community law, but also by granting individual citizens and lower courts the right to bypass their respective higher national and constitutional courts.

 In fact the ECJ’s history can be categorized into three periods.  The first encompassed its formation through the landmark cases of the 1960s, including the Van Gend en Loos and Costa cases and lasted until the early 1970s.  Although many foundational cases were decided in this period, the ECJ remained a weak institution as few took notice of the potential ramifications of these decisions.

 The second period continued until the 1980s.  During this period, the ECJ continued to expand on its foundational cases, and we can recognize that together the first and second periods represented the ECJ’s transformation into a political actor. To do so, the ECJ used a well-known judicial practice of expanding its jurisdictional authority by establishing legal principles to cases under its consideration. 

 The third and final period started in the 1980s and continues to the present day.  During this period, the ECJ’s area of control gradually expanded through treaty amendments including the Single European Act of 1986, the 1992 Maastricht Treaty, the 1997 Amsterdam Treaty, the 2001 Treaty of Nice, and the 2007 Treaty of Lisbon. 

 National courts throughout the member States have had varied responses to the ECJ’s efforts.  But most notable are Germany and Italy, which have consistently questioned the democratic legitimacy of the Union, making the issue both legal and political.  As the ECJ has been the most powerful force for integration, the courts in the member States have evidenced the most opposition. Some of the national court responses have mirrored the same arguments made by John C. Calhoun on nullification; in a word, the EU remains a group of aligned, but ultimately sovereign member States, and a State can nullify an act of the general government if deemed unconstitutional.

 Thus in order to understand the judicial fight in the EU more fully, we must return to the arguments and debates that raged within the United States during the early part of the 19th Century, especially the lessons learned from the pre-Civil War state-rights advocates, and particularly those of John C. Calhoun.

Calhoun’s understanding of federalism provides an alternative vision to the possibilities of federal organizations for emerging supra-national unions.  His arguments, and indeed his entire intellectual attack still resonates against the formation of large pluralistic super-unions that are based on the federal ideal as evidenced by the Maastricht Treaty and Lisbon Treaty preambles.

 Larry Backer’s excellent article titled “The extra-National State: American Confederation Federalism and the European Union,” Columbia Journal of European Law 7, (2001) provides the point of departure, but to understand where the European institutions are heading, we also need to understand how Chief Justice John Marshall revolutionized the relationship between Congress and the judiciary, first through his concept of judicial review, and second through his ruling on federal judicial power.  Indeed his actions irrevocably changed the nature of power between the American States and the federal authority. 

 Can the ECJ follow Marshall?  If not then State sovereignty is the issue that prevents the European Union from becoming a ‘United states of Europe’ and makes a mockery of the ‘functionalist’ argument.  As long as the national courts stick to Calhoun’s playbook, ultimate authority will remain with the member States.