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State Resistance to Authority in Federal Unions: The Early United States (1790–1860) and the European Community (1958–94)*

  • Leslie Friedman Goldstein (a1)

Extract

These quotes point to a puzzle, the puzzle with which this study begins: Within the past forty years, national member-states not only accepted the interpretive authority of the European Court of Justice (ECJ) as the supreme decision maker for conflicts between member-state authority and central federal authority of the European Community (since 1994, the European Union) but also accepted this court's dictates that the treaties forming the community had constitutional status as supreme law in every member state and that European-level law had higher law status within every member state, superseding any national law to the contrary. Indeed, European member-state acceptance of this development advanced much more rapidly than state acceptance of the U.S. Supreme Court in its first several decades. Yet this pattern of respective acceptance of central federal authority runs counter to prevailing understandings of sovereignty.

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1. 14 Georgia 440. This statement was issued as dicta, concerning which Benning had not consulted the rest of the judges.

2. Quoted in Charles Warren, “Legislative and Judicial Attacks on the Supreme Court of the United States – A History of the Twenty-Fifth Section of the Judiciary Act,” The American Law Review 47: 184–85 (hereafter, “Attacks”).

3. “Constitutionalism and the Many Faces of Federalism,” American Journal of Comparative Law 38: 210.

4. “Comment on Weiler's ‘The Transformation of Europe,’” Yale Law Journal 100: 2530.

5. Originally, 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 that 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 latter is often referred to as 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. The resulting European Community took the title European Union in 1994. Scheingold, Stuart A., The Law in Political Integration (Cambridge, Mass.: Center for International Affairs of Harvard University, 1971), 49 (hereafter, Political Integration); Rasmussen, Hjalte, “Towards a Normative Theory of Interpretation of Community Law,” University of Chicago Legal Forum 1992: 135–36 (hereafter, “Towards”).

6. For recent examinations of noncompliance in the EC/EU, see Krislov, Samuel, Ehlermann, Claus-Dieter, and Weiler, Joseph, “The Political Organs in the Decision-Making Process in the United States and the European Community,” in Integration through Law: Europe and the American Federal Experience. vol. I, bk. 2, ed. Cappelletti, Mauro, Secombe, Monica, and Weiler, Joseph (Berlin and New York: Walter de Gruyter, 1986), 3108; Snyder, Francis, “The Effectiveness of European Community Law: Institutions, Processes, Tools, and Techniques,” Modern Law Review 56 (1993): 1954; and Shaun Bowler, David Farrell, and Ian Holliday, “Building a European Union: Euro-federalism and the ECJ” (paper presented at annual meeting of the American Political Science Association, New York, September 1, 1994 (hereafter, “Building”). According to Bowler et al., as of 1994 the European Commission had taken twenty-one cases to the ECJ to request that fines be imposed on member states for “failure to comply with” (in the sense of “carry out”) an ECJ decision (pp. 33–34, 39).

7. For a discussion of Madison's various positions, see Corwin, Edward. “National Power and State Interposition 1787–1861,” Michigan Law Review 10 (1911): 544–47.

8. Madison, James, “Number 39,” in The Federalist Papers, Hamilton, Alexander, Jay, John, and Madison, James (17871788; reprint, New York: Mentor, 1961), 245–46.

9. 2 Dallas 419.

10. This convention was ratified in 1950 by the fifteen-member Council of Europe, an international organization with no official connection to the European Community, other than a partial overlap of membership.

11. Costa v. ENEL, ECJ Case 6/64 [1964] E.C.R. 585 (EC law supreme over subsequent legislation); International Handelsgeseltschaft u EVGF, ECJ Case 11/70 [1970] E.C.R. 1125, and Simmenthal II, ECJ Case 106/77 [1978] E.C.R. 629 (EC law supreme over national constitutional provisions).

12. Stein, Eric, “Lawyers, Judges, and the Making of a Transnational Constitution,” American Journal of International Law 75, no. 1 (1981): 1.

13. ERTA, ECJ Case 22/70 (March 31, 1971) [1971] E.C.R. 273; Re: The Draft Treaty on a European Economic Area (no. 2), ECJ Case 1/92 [1992] 2 CMLR 217.

14. Lenaerts, Koen, “Some Thoughts about the Interaction between Judges and Politicians,” University of Chicago Legal Forum, 1992: 93133 (hereafter, “Some Thoughts”), 119–20.

15. Commission v. Denmark, ECJ Case 302/86 [1988] E.C.R. 4607, 4630.

16. Lenaerts, “Some Thoughts,” 118–19, and cases discussed therein.

17. Francovich v. Italy, ECJ Case 6/90 (November 19, 1991) [1991] ECR 5357.

18. Rasmussen, “;Towards,” 138.

19. The veto system had developed informally under pressure from DeGaulle of France in the mid-1960s. It was officially restricted by the Single Europe Act. The Council of Ministers consists of ministers relevant to particular issues from each member state. Its membership fluctuates from issue to issue, and each state has one vote on the council. Until 1994 (when the European Parliament received additional powers), it was the main legislative body within the European Union and should not be confused with the European Council. The latter began informally as a thrice-yearly summit meeting of the heads of state plus their foreign ministers; under the Single European Act, it was officially mandated to convene twice a year and is optionally attended by the president of the European Commission. The European Council is a diplomatic session without formal rule-making authority for the union. Kent, Penelope, European Community Law (London: Longman, 1992), 1415; Freestone, David and Davidson, Scott, The Institutional Framework of the European Communities (London and New York: Croon Helm, 1988), 56157.

20. Lenarts, “Some Thoughts,” 93. As to the six states that joined the Community later (Ireland, Denmark, the United Kingdom, Greece, Spain, and Portugal), for a description of the adaptation of their respective legal systems to the principle of the supremacy of European law, see van Empel, M., Schermers, H.G. et al. , eds., Leading Cases on the Law of the European Communities, 5th ed. (Deventer and Boston: Kluwer Law and Taxation Pub., 1990), 159–60, 203–5, 228–39 (hereafter, Leading Cases).

21. Hjalte Rasmussen suggests that the answer to both these questions is that states rebelled when the judges exercised too much “activism.” He idiosyncratically defines judicial activism as judicial endorsement of principles that are out of touch with those values that “enjoy consensual support from the body politic” (On Law and Policy in the European Court of Justice [Dordrecht: Martinus Nijhoff, 1986], 124, 301–2 [hereafter, On Law]). While his book contains many other thoughtful insights, this particular suggestion deserves the simple reasponse that it does not fit the evidence, either for the nineteenth century United States or for the European Community. Cappelletti, Mauro concurs in this response to Rasmussen's, suggestion (“Is the European Court of Justice ‘Running Wild’?European Law Review 12 [1987]: 78).

22. These would include Mary Volcansek and Hjalte Rasmussen on the French Conseil d'État's Shell Barre decision, [1964] CMLR 462; Mary Volcansek on the same court's Ets. Petitjean case, no. 5/1967, 23 Droit Administratif; Rasmussen's, characterization of the German Supreme Tax Court's response to the ECJ's decisions in Lutticke v. Hauptzollumt Saarlois, ECJ Case 55/65 (06 16, 1966) [1966] E.C.R. 205, and Molkerie Zentrale Westphalen v. Hauptzollamt Paderborn, ECJ Case 28/67 (March 3, 1967) [1968] E.C.R. 143; and Volcansek's discussion of the Italian Constitutional Court's slow response to the ECJ's treatment of Costa v. ENEL (ECJ Case 6/64 [1964] E.C.R. 585) and the Simmenthal II case (1978), both of which reversed earlier decisions of the Italian Court (respectively, Costa u ENEL [1964] CMLR 425 and, for the Simmental II issue, rulings of October 30, 1975, no. 232; July 28, 1976, no. 205; and December 29, 1977, no. 163). The Italian Court did not overtly contradict the ECJ's reversal of the Italian Court's own ruling. It did, however, wait some time before officially endorsing the ECJ position, doing so, for the Costa v. ENEL position in December 1973, in Frontini v. Ministero delle Finanze ([1974] 2 CMLR 381), and for the (1978) Simmenthal II rule in its Cranital decision of 1984. See Volcansek, , Judicial Politics in Europe (New York: Peter Lang, 1986), 4851, 62–68, 150–51 (hereafter, Judicial Politics); Rasmussen, On Law, 310, 323, 454–56, 463 nn. 63–67; and Cartabia, Marta, “The Italian Constitutional Court and the Relationship between the Italian Legal System and the European Union,” working paper for the project The European Court and the National Courts – Doctrine and Jurisprudence: Iegal Change in its Social Context, directed by Slaughter, Anne-Marie, Shapiro, Martin, Stone, Alec, and Weiler, Joseph H. H. (hereafter, Slaughter et al.) (unpublished draft paper presented at the workshop for Slaughter et al., European University Institute, Florence, Italy, session of 06 27–29, 1994), 711 (hereafter, “The Italian Constitutional Court”).

In my view, the two German cases present problems of imperfect compliance, and the Italian cases slow compliance. The two French cases involve differences over interpreting Article 177 of the EC Treaty; its terms require the court of last resort in a country to refer for a preliminary ruling all cases to the ECJ that “raise” a “question” of treaty “interpretation.” Thus, when French (or any other) courts have felt their interpretation was obviously correct or necessary, and the challenge asserted by the litigant therefore frivolous, they have refrained from referring the case, relying on the so-called “acte clair” doctrine. Although some commentors do treat refusals to refer under the “acte clair” doctrine as “resistance” to the treaty, it is arguably a practical necessity, and the ECJ itself eventually endorsed a version of the “acte clair” doctrine in 1982 in C.I.L.F.I.T. v. Ministro delta Sanila, ECJ Case 283/81 (1983) 1 CMLR 472. As of 1994 the backlog of cases at the ECJ causes a preliminary ruling to take two years from request to decision.

23. Warren, “Attacks,” 15–16; McDonald, Forrest, A Constitutional History of the United States (New York: Franklin Watts, 1982), 102–3 (hereafter, History).

24. Sweet, Alec Stone, “Constitutional Dialogues in the European Community,” EUI Working Paper RSC no. 95/38 (Florence, Italy: European University Institute, 1995), 21; Alter, Karen, “Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration,” EUI Working Paper RSC no. 95/27 (Florence, Italy: European University Institute, 1995), 22. Both these scholars rely on the factual account in the report by Hervé Bribosia for their claims that the Belgian court has asserted, in principle, a potential limit on the EC/EU. But Bribosia himself indicates that if EC/EU law specifically came before the Belgian Court, that court might well carve out an exception from what it had said about international law as such. See Bribosia, Hervè, “Report on Belgium,” working paper for Slaughter et al., EUI Working Paper RSC no. 95/24 (Florence, Italy: European University Institute, 1995), 2633.

25. Sources consulted for this table include all of the following: Warren, “Attacks”; McDonald, History; Ashe, Samuel A'Court, History of North Carolina (Raleigh: Edwards & Broughton, 1925), 122; Powell, William, North Carolina through Four Centuries (Chapel Hill: University of North Carolina Press, 1989), 228–31; Campbell, Stanley, The Slave Catchers: Enforcement of the Furtive Slave Law 1850–1860, (New York: W.W. Norton, 1970), chap. 1 and 2 (hereafter, Slave Catchers); McDougall, Marion G., Fugitive Slaves 1619–1865, chap. V (1891; reprint, New York: Bergman Pub., 1967);Bobbitt, Philip, Constitutional Fate (New York: Oxford University Press, 1982), 1097–14 (hereafter, Constitutional Fate); Kelly, Alfred H., Harbison, Winifred, and Belz, Herman, The American Constitution: Its Origin and Development, 6th ed. (New York: W.W. Norton, 1982) (hereafter, The American Constitution); Powell, Jefferson, Languages of Power: A Sourcebook of Early American Constitutional History (Durham: Carolina Academic Press, 1991) (hereafter, Languages); Tipton, Diane, Nullification and Interposition in American Political Thought (Albuquerque: University of New Mexico Institute for Social Research and Development, 1969) (hereafter, Nullification) Prigg v. Pennsylvania, 16 Peters 539, 550–555 (1842); and Ableman v. Booth, 18 Howard 476 and 21 Howard 506 (1859).

26. For material in this and the two following paragraphs, see Campbell, chap. 1 and 2, and McDougall, chap. V.

27. 16 Peters 539.

28. Warren, “Attacks,” 5–12.

29. Material in this and the next paragraph comes from McDonald, History, 105–6; Warren, “Attacks,” 168–75; Bobbitt, Constitutional Fate, 109–14; Kelly et al., The American Constitution, 211–12.

30. Warren, passim.

31. McDonald, History, 98–99, 106–9; Kelly et al., The American Constitution, 150–53; J. Powell, Languages, 230, 239–48; Tipton, Nullification, 36–39; Warren, “Attacks,” 175; Campbell, Slave Catchers, 17.

32. 5 Cranch 136 (1809).

33. The Missouri Supreme Court responded to the U.S. Supreme Court's order, “We reverse and remand for proceedings in conformity to our opinion,” in Magwire v. Tyler, 8 Wall. 650 (1872) (a land-patent case), by reversing and then reenacting the same decree. The U.S. Supreme Court on a second appeal then announced that its order was being “in effect evade[d]” and therefore it reversed (again) and awarded execution directly to the prevailing party (Warren, “Attacks,” 185–86).

34. Van Gend en Loos v. Netherlandse Administratie, ECJ Case 26/62 [1963] E.C.R. 1.

35. Costa v. ENEL.

36. International Handelsgesellschaft v. EVGF. The rule that national constitutional provisions must give way to supranational EC law was reiterated in Simmenthal II (1978).

37. See, e.g., van Empel, Schermers et al., Leading Cases. See also Schermers, Henry and Waelbroeck, Denis, Judicial Protection in the European Communities (Deventer and Boston: Kluwer, 1992), 127–38. For a detailed account of how the legal order in one of the later-joining nation-states with a strong tradition of parliamentary supremacy adapted to ECJ supremacy, see Craig, P.P., “Report on the United Kingdom,” working paper for Slaughter et al., EUI Working Paper no. 95/29 (Florence, Italy: European University Institute, 1995).

38. Bibas, Steven, “The European Court of Justice and the U.S. Supreme Court: Parallels in Fundamental rights Jurisprudence,” Hastings International and Comparative Law Review 15 (1992): 253–70 (hereafter “The European Court).

39. After the Maastricht Treaty of 1993, the European Parliament took on a more coequal role as legislator.

40. Grad v. Finanzamt Traustein, ECJ Case 9/70 [1970] E.C.R. 825, and Van Duyn v. Home Office, ECJ Case 41/74 [1974] E.C.R. 1337.

41. VAT Directive Case, German Supreme Tax Court (1982) 1 CMLR 527 (case later known as “ VAT I”).

42. VAT II, 143 BFHE 383 (1985); 75 BVerfGE 223 (1986).

43. VAT II, 2 BvR 687/85.

44. The Conseil d'État (literally, Council of State) is the Supreme Administrative Court. France has three high courts. The Constitutional Court acts as an advisory body to Parliament on questions whether pending French laws violate the French Constitution. This court has avoided involvement with European law cases. The Cour de Cassation (Supreme Civil Court) has not resisted European authority, indeed openly accepting it even during the era of overt resistance by the Conseil d'État.

45. Syndicat Général de Fabricante de Semoules, [1970] CMLR 395 (hereafter, Semoules). See also French cases listed in n. 22.

46. In 1978, Minister of the Interior v. Cohn-Bendit (hereafter, Cohn-Bendit) [1980] 1 CMLR 543; in 1980, Office Nationale Interprofessional de Céréales (hereafter, ONIC), May 9, 1980, Recueil, 220; 3 Revue trimestrielle de droit européen 1980, 578; and Société Sovincast November 20, 1980, no. 1113, 1981 Revue Droit Fiscal 21; in 1981 Société civile Centre international dentaire (hereafter, Dentaire) February 25, 1981, no. 1587, 1981 Revue Droit Fiscal 31–32; and in 1985 Commission v. France (tobacco pricing cases). The latter had been decided by the ECJ on June 21, 1983, whose ruling (a condemnation of France for illegal behavior) was then rejected or defied by the French Conseil d'État on December 13, 1985, Rec. Lebon, 377. (The ECJ then reiterated its condemnation of France in Case 169/87, July 13, 1988.)

47. On tobacco pricing, ibid. The tobacco pricing conflict ended in 1992, when the French Conseil d'État accepted the supremacy of European Community directives over French law (Jacqueline Dutheil de la Rochère, “ Société… Rothmans and Société… Philip Morris France, Two Decisions by the Conseil d'État…” Common Market Law Review 30: 187–98 [hereafter, “Société”]). The so-called “Mutton War” cases of 1978–80 were Commission v. France, ECJ Cases 239/78 [1979] E.C.R. 2729; 24/80 and 97/80.

48. Nicolo, October 20, 1989; Recueil, 190, concl. Frydman.

49. Boisdet, September 24, 1990; Recueil, 250.

50. Dutheil de la Rochère, “Société.”

51. See “ Solange I” – Internationale Handekgesellschaft v. Einfuhr-und Vorratsstelle (1974) 2 CMLR 540; “ Solange II” – Wunsche Handekgesellschaft, 73 BVerfGE 339; [1987] 3 CMLR 225; and “ Maastricht II” – 20 EuGRZ 429 (1993): 33 International Legal Materials 388 (1994).

52. The material in Table 4 is drawn from the following sources: Volcansek, Judicial Politics; Van Empel, Schermers et al., leading Cases; Bibas, “The European Court”; Cartabia, “The Italian Constitutional Court”; Rasmussen, On Law; Dutheil de la Rochère, “Société,” “The European Court”; Kent, European Community Law; Plötner, Jens, “Report on France,” working paper for Slaughter et al., EUI Working Paper RSC no. 95/28 (Florence, Italy: European University Institute, 1995); Gaja, Giorgio, “Annotation” to S.p.a. Granital v. Amministrazione delle Finanze dello Stato, Common Market Law Review 21 (1985): 764–72; Frowein, J.A., “Solange II (BVerfGE 73, 339). Constitutional complaint Firma W.,” Common Market Law Review 25 (1988): 201–6; Kokott, Juliane, “Report on Germany,” working paper for Slaughter et al., EUI Working Paper RSC no. 95/25 (Florence, Italy: European University Institute 1995); Bebr, Gerhard, “The Rambling Ghost of Cohn-Bendil: Acte Clair and the Court of Justice,” Common Market Law Review 20 (1983): 439–72; Audeod, O., “The Application of Community Law in France: Review of French Court Decisions from 1974 to 1981,” Common Market Law Review 19 (1982): 289309; and Herdegen, Matthias, “Maastricht and the German Constitutional Court: Constitutional Restraints for an ‘Ever Closer Union,’Common Market Law Review 31 (1994): 235–49.

53. It is worth noting that the Canadian Federation – another union officially formed in the late twentieth century – does permit nullification by individual provinces of Canadian Supreme Court decisions that declare a provincial law in violation of the Charter of Rights. I am indebted for this point to Canadian political scientists Peter Russell and F.L. (Ted) Morton.

54. This veto power svstem was a matter of de facto practice, adopted via the Luxembourg Accords upon the insístence of France in January 1966. These Accords have no formal legal status (Freestone and Davidson 1988, 102–3).

55. See, e.g., Calhoun's, Disquisition on Government (1848; reprint, New York: P. Smith, 1963).

56. Warren, “Attacks,” 27, 188. The 1823 proposal came from Sen. Richard Johnson of Kentucky in the form of a proposed resolution to the Judiciary Committee to draw up such a bill. The 1867 suggestion came in the form of a bill introduced to the House by Rep. Thomas Williams of Pennsylvania. Neither was adopted.

57. Warren, “Attacks,” 22–33, contains the following account: In December 1823, the Kentucky legislature adopted a resolution urging Congress to pass such legislation. In March 1824 Martin Van Buren reported such a bill out of the Senate Judiciary Committee; it was tabled a month later. In May 1824 the House Judiciary Committee debated but rejected a bill that would have required a two-thirds Supreme Court vote to overturn state legislation. In 1824 and again in 1825 Rep. Robert Letcher of Virginia introduced a resolve to do the same. No action was taken on it. In 1826 Senator Rowan of Kentucky proposed the same as an amendment on a pending bill altering the size of the Supreme Court. Both the amendment and the bill went down to defeat. In 1827 Representative Wickliffe of Kentucky introduced a bill in the House that would require such a two-thirds vote. It was not adopted. And in 1829 such a bill was reported out of the House Judiciary Committee. It went no further.

58. In this system as of 1994, France, Germany, the United Kingdom, and Italy each has ten votes; Spain had eight; Belgium, Greece, The Netherlands, and Portugal each had five; Denmark and Ireland each had three; and Luxembourg had two. Measures needed fifty-four votes out of the seventy-six total to pass. The Single European Act extended voting by this system to cover most legislation for the internal market, leaving out (for the unanimity requirement) only fiscal measures, free movement of persons and the rights and interests of employed persons (Kent, European Community Law, 14–15). The parallel drawn in the text is inexact in the sense that voting in the EU is proportional to size while voting in the U.S. Supreme Court is one per justice.

59. DeFrenne v. Belgium, ECJ Case 80/71 [19747] 1 CMLR 494.

60. Society for the Protection of Unborn Children v. Grogan (1991) ECJ Case C-159/90 [1992] CMLR 29: 585; Bowler, 18–19; Coppel, Jason and O'Neill, Aidan, “The European Court of Justice: Taking Rights Seriously?Common Market Law Review 29 (1992): 669–92.

61. Lenaerts, “Some Thoughts,” 105–6.

62. Warren, “Attacks,” 26, 188.

63. It was informal practice in the United States until the term of Ronald Reagan (1981) to aim for at least regional (albeit not state-by-state) representation in the Supreme Court appointment process. Reagan seems to have initiated a trend to focus more narrowly on ideology and to ignore geography. Perhaps this is because the United States is more regionally homogeneous of late.

64. Weiler, Joseph, “The Transformation of Europe,” Yale Law Journal 100 (1991): 2425 (hereafter, “Transformation”).

65. Warren, “Attacks,” 165. Both proposals came from Sen. Joseph Lecompte of Kentucky and were defeated, respectively, by votes of 115–61 and 141–27.

66. Burley, Anne-Marie and Mattli, Walter, “Europe before the Court: A Political Theory of Legal Integration,” International Organization 47 (1993): 65 (hereafter, “A Political Theory”); Plötner, “Report on France,” 31–33.

67. Ibid., 64–65.

68. 1 Wheaton (14 U.S.) 304.

69. See also discussion of the case in Gunther, Gerald, Constitutional Law, 12th ed. (Westbury, N.Y.: Foundation Press, 1991), 2932, and J. Powell, Languages, 296–302; and discussion of similar arguments in the lesser known case Jackson v. Rose, 2 Va. Cas. 34 (1815) in J. Powell, Languages, 295–96, 301–2.

70. In Ex Parte Young (209 U.S. 123 [1908]), the Supreme Court allowed a lawsuit from a private citizen for an injunction to be issued by a federal court to keep state officials from carrying out an unconstitutional law. The various contradictions of contemporary Eleventh Amendment doctrine are explored in inter alia Jackson, Vicki, “The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity,” Yale Law Journal 98 (1988): 1126, and Sherry, Suzanna, “The Eleventh Amendment and Stare Decisis: Overruling Hans v. Louisiana,” University of Chicago Law Review 57 (1990): 1260–72.

71. 6 Wheaton 264.

72. Shapiro, Martin, “The European Court of Justice,” in Europolitics: Institutions and Polirymaking in the New European Community, ed. Sbragia, Alberta (Washington, D.C.: Brookings, 1991), 126–27.

73. The number of Article 177 cases brought to the court mushroomed dramatically from 1 in 1962 to 119 in 1978, stabilizing after that to around one hundred per year (but with additional cases being handled by the Court of First Instance after 1988). Scheingold, Political Integration, 30–36; Burley and Mattli, “A Political Theory,” 58, citing Rasmussen, On Law, 245.

74. There was for a time considerable controversy over the flexibility with which one might legitimately interpret the phrase “raise a question of interpretation.” See n. 22 for details.

75. Weiler, Joseph, “Journev to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration,” Journal of Common Market Studies 31, no. 4 (1993): 421–30 (hereafter, “Journey”); Burley and Mattli, “A Political Theory,” 64–65.

76. This remark derives from the author's personal observations and conversations.

77. Friedman, Lawrence M., A History of American Law (New York: Simon and Schuster, 1985), 322–26.

78. Among the later joining countries, judicial review was exercised by a high court in Denmark and in Ireland. Caldeira, Gregory and Gibson, James, “The Legitimacy of Transnational Institutions: Compliance, Support, and the European Court of Justice,” American Journal of Political Science 39 (1995): 464.

79. Weiler, “Transformation,” 2426.

80. Kaestle, Carl, Pillars of the Republic: Common Schools and American Society 1780–1860 (New York: Hill and Wang, 1983), 67, 71, 99–100.

81. Celebrations specifically of the American Revolution, however, as noted earlier, would have functioned as a two-edged sword. While on the surface it would have been profederal, nonetheless, because the American federation began as a colonial rebellion against distant central authority, celebrations of this rebellion carried the subversive undercurrent of an anti-federal subtext.

82. The Reporter's Act of 1817 was drafted by Supreme Court Justice Joseph Story, who also worked with the reporter Henry Wheaton to produce a digest of U.S. Supreme Court opinions for publication and nationwide sale. (They were to be published under Wheaton's name.) White, G. Edward, The American Judicial Tradition Profiles of Leading American Judges (New York: Oxford University Press, 1976), 4445 (hereafter, American Judicial).

83. The European Union has yet to develop such parties to compete for seats in the European Parliament. Evidently, the fact that the American union had a federation-wide elective presidency, whose election was expected to be settled in the federal House of Representatives, promoted the formation of federation-wide parties rather than the merely state-based ones that exist in Europe. The United States had such parties by the end of the eighteenth century.

84. E.g., Weiler, “Transformation,” 2428–2431; Lenaerts, “Some Thoughts”; Rasmussen, On Law, 288–291.

85. According to Bowler et al., “Eurobarometer survey after Eurobarometer survey document[s] the … generally low levels of enthusiasm for European unification [in European public opinion],” “Building,” 16.

86. Rasmussen, On Law, 289, 291.

87. This conclusion is based on the reported mass perception of not seeing or reading anything “recently” “in the papers, on the radio, or on television” about the European Court of Justice, as compared to the mass perception on similar questions about other institutions of the European Union. While 82 percent had heard/read something about the European Community, 55 percent about the European Parliament, 51 percent about the European Commission, 59 percent about their national court, and 85 percent about the Maastricht Treaty, only 34.4 percent claimed to have heard/seen anything recently about the European Court of Justice. Caldeira, Gregory and Gibson, James, “The Legitimacy of the Court of Justice in the European Union: Models of Diffuse Support,”American Political Science Review 89 (1995): 362, 373–74.

88. Wood, Gordon, The Creation of the American Republic 1776–1787 (Chapel Hill: University of North Carolina Press, 1969).

89. A common criticism made by antifederalists against adoption of the federal Constitution of 1787 was that it did not retain the typical state institution of annual elections. The complaint was that this would allow government officials to stray too far from the will of the people.

90. But cf. Schermers, Henry, “Comment on Weiler's ‘The Transformation of Europe,’Yak Law Journal 100 (1991): 2527–28 (arguing that on other occasions national-level executive branch politicians in Europe acted in a more anti-EC direction than was favored by public or parliamentary opinion in their country).

91. Burley and Mattli note that while “states do often strongly object to proposed [interpretations of Euro-law] prior to a particular decision,” once an ECJ decision has been handed down they never (so far as Rasmussen's research could discover) have argued at the court that a prior ECJ decision (even one they had earlier opposed) be overturned (“A Political Theory,” 67–68, citing Rasmussen, On Law; emphasis in Burley and Mattli).

92. Weiler, “Transformation,” 2425; “Journey,” 424–25.

93. Burley and Mattli, “A Political Theory,” endorse his proposition on p. 67.

94. G. Edward White, American Judicial, 45.

95. See the paragraph in the text following footnote 31.

96. Warren, “Attacks,” 6–12, 15–19, 175; McDonald, History, 98–103, 106–9; J. Powell, Languages, 230, 239–48, 287–89, 296–309; Kelly et al., The American Constitution, 150–53; Tipton, Nullification, 25–27, 36–39; McDougall, 68.

97. Weiler, “;Journey,” 423–27.

98. Weiler, “Journey,” 424; Scheingold, Political Integration, sect. 3.

99. 22 U.S. 1 (1824).

100. Gibbons, on the grounds of a federally granted coasting license possessed by the appellant, struck down a New York–granted steam boat monopoly, thereby opening waterways to competition from other states. For a history of the stratification of the professional bar in the early United States and a history of legal education in the period, see Friedman, chap. VII. For an account of the evolution of an alliance between an increasingly professionalized bench and bar in the 1790–1820 United States and commercial interests, all of whom came to prefer that nationally uniform rules of commerce replace locally idiosyncratic laws and juries, see Horwitz, Morton, The Transformation of American Law 1780–1860 (Cambridge, Mass.: Harvard University Press, 1977), chap. 5.

101. Garrett, Geoffrey and Weingast, Barry, “Ideas, Interests, and Institutions: Constituting the EC's Internal Market,” in Ideas and Foreign Policy, ed. Goldstein, J. and Keohane, R. (Ithaca, N.Y.: Cornell University Press, 1993); Garrett, Geoffrey, “International Cooperation and Institutional Choice: The European Community's Internal Market,” International Organization 46, no. 2 (1992): 533–60.

* Author gratefully acknowledges the support of the University of Delaware Center for Advanced Studies, and also thanks Alec Stone for his invitation to attend the workshop on Judicial Reception of ECJ Doctrine of the European University Institute, June 27–29, 1994.

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State Resistance to Authority in Federal Unions: The Early United States (1790–1860) and the European Community (1958–94)*

  • Leslie Friedman Goldstein (a1)

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