Constituting Federal Sovereignty: The European Union in Comparative Context

1 The Member-State Resistance Paradox: American Union (1790–1860) versus European Community (1958–1994)

chapter 1 The Member-State Resistance Paradox: American Union (1790–1860) versus European Community (1958–1994) The Paradox An observer of the European Union familiar with the turbulent early history of the American union confronts a paradox. (Because much of that early American history has been neglected or forgotten, this paradox is not widely noted.)1 In the United States, where the Constitution was rati fied in 1788 and the government first took office in 1789, the Supreme Court—and to some degree the federal judiciary in general, as well as other federal authorities—was the target of an almost annual stream of open and official state resistance for seventy years. In stark contrast to the early federal history of the United States, the European Community, set up by the Treaty of Rome in 1957, with functioning institutions by 1958, experienced a much less rocky path to legal integration. Originally and technically, there were three separate but overlapping European Communities, formed by three distinct treaties: the European Coal and Steel Treaty, which formed the European Coal and Steel Community in 1952; and two 1957 treaties, which set up organizations that began functioning in 1958: the Euratom Treaty of the European Atomic Energy Community, and the Treaty for the European Economic Community , or Common Market (the Treaty of Rome). By interpretive practice of the European Court of Justice, the three treaties and the three communities have been fused into one.2 The resulting European Community took the title European Union at the end of 1993, as a result of the Treaty of Maastricht. The Treaty of Rome is officially interpreted by one court, the European Court of Justice (ECJ), which was given a lower-level helper, the Court of First Instance, in the late 1980s. Occasions of defiance of the ECJ, in the sense of openly active resistance to or outright denial of the legitimacy of its authority, have been relatively rare. (Not that compliance with every mandate has been perfect, but noncompliance that results from inertia or passivity is not the focus here.)3 While Europe has also seen instances of governmental resistance to the central community authority, the occasional outcropping of them (described below) does not approach the veritable parade of them experienced in antebellum America. In short, the evident paradox is that the nominally sovereign government of the United States of America experienced several decades of overt and occasionally even violent official defiance of its authority by the member states of the American union, while the nominally sovereign member states of the European Union virtually from the start obeyed as a legitimate higher authority the dictates of the judiciary of their federal union. That which in ordinary understanding was less sovereign acted as more sovereign and vice versa. Apart from its conflict with prevailing conceptions of sovereignty, the contrast between the frequency of overt and official state governmental defiance on the American side and the rarity and softness of tone of member-state resistance to the authority exercised by the EC, specifically by its Court of Justice, is puzzling for additional reasons. The contrast between the two unions becomes almost startling when one closely considers the relation between each federation’s supreme court and their respective founding documents on each side of the Atlantic. Indeed, the differing member-state resistance patterns directly contradict what someone reading the two documents would plausibly expect. The federal Constitution ratified by the American states was tolerably explicit about where power would lie, whereas the wording of the Treaty of Rome (not to mention the probable expectations of its signers) turned out to be a far cry from what the ECJ managed to make it mean. In the American example, there was the Supremacy Clause (Article 6, Clause 2), stating essentially that federal law, whether Constitution, statute, or treaty, was to be “the supreme law of the land; and judges in the several states shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Anticipation was surely that this clause would be among those upheld through the federal judiciary, whose power was described in Article 3 as “extending to all cases arising under” the national Constitution, national laws, or national member-state resistance paradox 15 treaties, as well as (inter alia) to all controversies “to which the United States shall be a party...