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Revised version
©Copyright: Steve J. Boom, 1995.
IV. Application of US norms to Europa
A. Consolidation of Federal Power
V. Considerations unique to Europe
VI. Implications of the Maastricht decision
In October 1993, the German Federal Constitutional Court issued its Maastricht decision [1] which both upheld the constitutionality of the Treaty of Maastricht and paved the way for Germany's participation in the future of European integration. The Court's opinion, however, contains statements that have caused quite a stir in the European Union. Foremost among these is its pronouncement that "the Federal Constitutional Court will examine whether legal acts of the European institutions and organs are within or exceed the sovereign powers transferred to them." [2] In other words, the Federal Constitutional Court, not the European Court of Justice (ECJ), will decide where the limits to European power lie, at least with respect to Germany. Furthermore, the Court stated, legal acts of the Union which exceed the competences outlined in the treaty, as interpreted by the German court will not be legally binding in Germany. [3]
The implications of these statements are profound. At stake are the uniform application of Union law and the future of European integration itself. "The danger to the central authority is not merely the occasional dramatic conflict over the legitimacy of one or another of its enactments, but the corrosive effect of continual challenges to its authority that cannot be resolved authoritatively." [4] Indeed, the conflict over precisely this issue was one of the factors contributing to the outbreak of the Civil War in the United States. [5]
These challenges to central authority could arise in several ways in the Union, depending on the implementation of the Federal Constitutional Court's language. [6] First, a German citizen could challenge any Union legal act as being ultra vires in the Federal Constitutional Court. This challenge could be brought directly against a piece of Union legislation or even a ECJ decision. Second, if presented with a suit involving a Union legal act, a lower German court could refuse to make an article 177 reference to the ECJ on the ground that, because the legal act is ultra vires, there is no issue of European law to be referred. Alternatively, a third possibility would be that, after a German court had made an article 177 reference to the ECJ, either the German court or one of the parties to the dispute could challenge the ECJ's ruling as being ultra vires and, therefore, nonbinding in Germany. Under a fourth scenario, the challenge to Union authority could come outside the realm of the judiciary: Maastricht's language seems to require any German state agency to ignore a Union legal act if such act is ultra vires. [7] The consequence of any one of these scenarios could be an article 169 proceeding against Germany before the ECJ for failure to fulfill its treaty obligations. If the Union legal act were ultra vires, however, the Federal Constitutional Court could prohibit German agencies from implementing the legislation, regardless of the ECJ's decision in the article 169 proceeding.
Any or all of the above scenarios, if they arose frequently enough, could have serious implications for the European Union. The potentially destructive nature of such cases could be aggravated further should constitutional courts in other Member States of the European Union adopt a similar position.
This article analyzes the Maastricht decision and discusses, in detail, the issue of which court in a federal system possesses the authority to draw the boundaries of federal power.
The content and methodology of the article are comparative. While the European debate over this issue is no older than the European Union itself, the problem is inherent in any federal system. [8] Therefore, the article analyzes the issue as it evolved in the United States in order to inform more fully the discussion of the present-day European situation and to shed light on the possible future implications of the Maastricht decision. [9]
To begin, the Federal Constitutional Court's Maastricht decision is presented and analyzed. This analysis serves two goals. First, a preliminary treatment of the complainant's allegations and the grounds for the Court's holding serves as an in-depth statement of the problem and its magnitude. Second, such analysis is a critical background to the American comparison.
Following this introduction, the article shifts its focus across the Atlantic and back in time to, primarily, the 19th century. There are two components to the American experience which must be addressed. Of primary importance is, of course, the jurisprudential treatment of the problem of the division of competences. Equally important, however, is a description and analysis of the political debate surrounding the jurisprudence. As will become apparent below, the resolution of the problem in the US was, and in Europe is destined to be, a mixture of law and politics.
Third, the article extracts from the American experience normative ways of thinking about the problem and applies these norms to the European Union and, more specifically, the Maastricht decision. In recognition of the inherent limitations of any comparison of the United States and the European Union, the article then examines factors unique to the European Union.
Finally, possible ramifications of the Federal Constitutional Court's Maastricht decision on the European Union and European integration are discussed. As with the other sections of the article, projections on this issue are informed by the discussion of the American experience.
In short, the primary purpose of this article is to enrich the analysis of the problem in the European Union. Approaching the issue comparatively provides an assortment of lenses through which one can view the authority to divide competences in a federal system. This normative way of thinking should, hopefully, inform and broaden the debate which inevitably will take place in Europe in the coming years.
It is equally important to underscore what the article does not try to accomplish. Nowhere does the article devise a list of policy responses to the issue which should be adopted in Europe. Although a comparative approach necessarily raises the possibility of particular responses, [10] this article attempts to avoid drawing conclusions from the American experience simply to posit them as "obvious" answers for the European Union. Rather, it seeks to enable the reader to apply to Europe the conclusions drawn from the American experience in order to pursue a more profound and reasoned approach to European solutions.
Of primary interest for purposes of this article are three issues which surface in the Maastricht decision. [11] In the first substantive part of the decision, the Federal Constitutional Court addresses the admissibility of the various challenges brought against the Treaty of Maastricht and discusses its own role in the protection of fundamental rights within the European legal system. The second part of the decision, which addresses the merits of the claims, raises two interrelated but distinct issues: the expansion of European Union competences through treaty amendment and interpretation, and the potential existence of "absolute" limits to European integration.
Although most complaints were dismissed for lack of standing, the portion of the Court's dismissal dealing with fundamental rights is quite interesting. The Court acknowledged that, because of Germany's participation in the European Union, it is possible for violations of German citizens' fundamental rights to occur at the hands of European organs, as well as German organs. Nonetheless, the Court declared, a substantial reduction in fundamental rights standards will not occur, for one simple reason: the Federal Constitutional Court, through its jurisdiction, ensures that an effective level of fundamental rights protection for German citizens is maintained, even with respect to European authorities. [12]
With this statement, the Court both adhered to earlier decisions and embarked on a new course. The Court cited its holding in a 1986 decision, [13] namely that the Court rules on European law in a "relationship of cooperation" with the ECJ. In deference to this cooperative relationship, the Federal Constitutional Court does not exercise its jurisdiction over individual fundamental rights cases, leaving this to the ECJ, as long as a sufficient level of protection is maintained. [14]
What is different from Solange IIÊ is the Court's assertion of jurisdiction over acts of European organs: it had previously limited its review to acts of German state power. [15] In explicitly overruling its previous jurisprudence, the Court rejected this jurisdictional limitation on the grounds that acts of the Union, not just as acts of German state power, affect the fundamental rights of German citizens. These acts must, therefore, fall under the watchful eye of the Federal Constitutional Court.
This passage set the tone for the remainder of the opinion. The Federal Constitutional Court, by claiming jurisdiction over the legal acts of European organs, seemed to challenge the authority of the ECJ. This jurisdictional extension could conceivably lead, despite the Court's affirmation of the Solange II formula, to instances where the Federal Constitutional Court challenges individual decisions of the ECJ, instead of merely safeguarding a general level of fundamental rights protection and stepping in only when that level fell below German requirements. [16]
What is striking is that since the Solange II decision, fundamental rights protection in the European Union has, in fact, been significantly strengthened. [17] Indeed, the Treaty of Maastricht itself calls for "the Union [to] respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms...and as they result from the constitutional traditions common to the Member States." [18] It seems odd, therefore, that the Federal Constitutional Court would find it necessary to offer such a challenge to the ECJ. It makes sense only in light of the Fedeal Constitutional Court's more dramatic statements later in the opinion.
The only claim granted standing was the complainant's assertion that the Treaty of Maastricht violated its constitutional rights guaranteed by article 38 (1) of the Basic Law. [19] Article 38 is part of the constitutional "Democracy Principle," a basic premise of which is that state authority must emanate from the people. By creating the constitutional right to elect members of the Bundestag, article 38 democratically legitimates the Bundestag's actions and safeguards the Democracy Principle. [20]
The fisrt part of the Court's article 38 analysis focused on the limits to the amount of power which may constitutionally be transferred from Germany to the European Union.
The complainant asserted that, in light of the European Union's qualified majority voting system, the any transfer of power from Germany to the European Union under the Treaty of Maastricht necessary violated the Democracy Principle. [21] The Court rejected this claim, explaining that the Basic Law specifically provided for Germany's membership in the European Union. Therefore, the fact that state authority is not exercised in the European Union in a manner identical to Germany does not violate the Basic Law: state authority can emanate from the people in different constitutionally-permissible ways. [22]
The Court then examined the status of democratic legitimation within the European Union to determine whether Union power is, in fact, ultimately exercised by the people. It found that certain basic features of a democracy, such as a constant, free exchange of ideas leading to a common public opinion, transparent and understandable (to the ordinary citizen) objectives of public authority, and the possibility of every citizen to communicate in his native tongue with public authorities to whom he is subjected, are currently lacking in the European Union. [23]
While the Court acknowledged the democratic role of the European Parliament within the institutional framework of the European Union, it called this role "supportive." [24] This role, the Court pointed out, could be strengthened in the future by, for example, instituting uniform election laws in all Member States. [25] At present, however, the real power of the Union is exercised by the Council, which is not a popularly-elected body, and whose decision-making sessions are not transparent to the public.
Given the lack of democratic infrastructure in the European Union and the peripheral role of the European Parliament, the Court concluded, democratic legitimation is achieved primarily through the participation of national parliaments. Because this democratic legitimation is indirect, however, in contrast to the direct legitimation of German power, the Court set a limit on the amount of power that may be transferred to the European Union. [26] Should the Bundestag transfer too many of its competences, too much state power would be legitimated only indirectly; as a result, the Democracy Principle would be violated. The Court did not, however, postulate where this limit might lie. [27]
The second part of the Court's analysis of the Democracy Principle centered on the certainty and specificity with which competences must be transferred to the European Union. The Court held that article 38 would be violated if the rights and duties associated with Germany's membership in the Union, especially with respect to legal acts of the Union with direct applicability within Germany, are not reasonably foreseeable and described with sufficient certainty in the implementing legislation. [28]
By establishing this certainty requirement, the Federal Constitutional Court underscored the fact that there is a difference between treaty interpretation and treaty amendment. In its words, "subsequent fundamental changes to the integration program and the associated competences outlined in the Union Treaty are not covered by the implementing legislation to the treaty." [29] If not acting in accordance with the powers expressly transferred by the Bundestag, the European Union and its institutionsÑincluding the Council, the Commission, the Parliament, and the Court of JusticeÑact ultra vires. According to the Court, legal acts taken pursuant to such "treaty amendment by interpretation" would not be binding in Germany; German state organs would be constitutionally prohibited from implementing them.
The Court then warned against a broad interpretation of article 235, which in the past had facilitated the transfer of competences to the Union without treaty amendment. Specifically, the Court stated
[w]hereas a dynamic expansion of the existing treaties through a broad interpretation of Art. 235 of the Treaty of Rome has been, until now, based on the theories of "implied powers" of the European Communities or "effet utile", it must be noted for the future that the Union Treaty differentiates between the exercise of limited sovereign power [30] and amendment to the treaty, such that interpretation of competences by institutions and organs of the communities may not amount to treaty expansion. Such an interpretation would not be binding in Germany. [31]
Moreover, the Court added, it is "the Federal Constitutional Court [that] will examine whether legal acts of the European institutions and organs are within or exceed the sovereign powers transferred to them." [32] In the Court's eyes, such authority is properly located with it, not the ECJ. It is this statement, unnecessary to the outcome of the case, [33] that has created a stir among constitutional scholars. [34]
The Federal Constitutional Court's assertion of jurisdiction is both bold and dramatic, yet not without foundation in earlier decisions. [35] In its 1987 Kloppenburg [36] decision, the Court declared that "the Member States are now, and always have been, the masters of the Union treaties." [37] Thus, neither the ECJ nor the other Union institutions could interpret the treaty so as "to extend at will the jurisdiction of the Union." [38] The Federal Constitutional Court also intimated that it had the power to "decide where the general limits to the scope of the Union's authority [to interpret the treaty and its objectives] run." [39] Strikingly different in this case, however, was the Court's tone: instead of challenging the ECJ, as in Maastricht, the Court praised the ECJ's jurisprudential methodology and treaty interpretation. In Kloppenburg, the Federal Constitutional Court viewed the ECJ's methodology as giving effect to an existing Union competence, not creating a new competence. [40]
In sum, the Federal Constitutional Court decided three separate but related issues, in addition to upholding the Treaty of Maastricht's constitutionality. The first and third issues involve the Court's relationship with the ECJ. First, the Federal Constitutional Court reaffirmed that it retains jurisdiction for the guarantee of fundamental rights protection, albeit in a "cooperative relationship" with the ECJ. In so doing, it extended this jurisdiction to review acts of European organs, including the ECJ. Second, the Federal Constitutional Court seemed to impose an "absolute" limit to the number of competences which may constitutionally be transferred to the European Union. [41] This limit flows directly from the Democracy Principle. Third, and most importantly, the Federal Constitutional Court declared that the contours of power permissibly transferred to the European Union are determined and limited by the Treaty of Maastricht and the accompanying implementing legislation. This also flows from the Democracy Principle. The Federal Constitutional Court stated that, with respect to Germany, it, and not the ECJ, will be the final arbiter of disputes concerning the division of European and Member State power. In other words, the Federal Constitutional Court will police the boundaries of permissibly-transferred powers and decide when acts of the Union are ultra vires.
The foregoing analysis of the Maastricht decision is meant to provide the reader with a firm understanding of the Court's reasoning. Although the issue of fundamental rights protection is certainly important, it is the focus of neither the Maastricht decision nor this article. [42] Its relevance for this article lies in the Court's general attitude towards the ECJ. The remainder of the article will focus on the latter two issues, especially the Federal Constitutional Court as final arbiter of the allocation of federal powers.
The reason for undertaking a detailed examination of the authority to determine the limits of federal power in the United States seems clear. The US, being more than 150 years older than the European Union, provides a good example of the manner in which way in which one federal system confronted and resolved the issue. With this experience as a backdrop, the nature and the magnitude of the problem in Europe are illuminated, and as a result, a more thoughtful and complete approach to the European debate should be possible.
This section of the article begins with an examination of the jurisprudence that established the Supreme Court's role as the final arbiter of federal power boundary line disputes. Such an analysis would, by itself, paint far too simple a picture of the issue's resolution, however. This issue was not resolved by a simple declaration by the Supreme Court that it possessed jurisdiction. Rather, the resolution involved an interplay of judicial reasoning and political debate among the states of the Union. In fact, there is a strong argument that, "[a]t bottom, the issue was one of politics and expediency rather than law." [43]Therefore, after discussing the jurisprudence, the article surveys the surrounding political and legal debate.
The seminal American case which established the legal basis for Supreme Court review of state court decisions on issues of federal power is Martin v. Hunter's Lessee, [44] decided in 1816. This case has been called the "keystone of the whole arch of the federal judicial power." [45]
The procedural history of Martin began with the US Supreme Court reversing the Virginia Court of Appeals' decision and issued a mandate directing to the Virginia judges "to enter judgment [accordingly.]" [46] The Supreme Court's language left no room for discussion about the mandate's meaning: it "commanded" the Virginia court to obey the Supreme Court. [47]
The Virginia court simply refused to obey the Supreme Court's mandate, declaring that the Supreme Court's decision was "not in pursuance of the constitution of the United States." [48] In the Virginia court's view, the Supreme Court had exceeded its jurisdiction and acted ultra vires.
The reasoning of the Virginia court is critical to an understanding of the conflict. First, Judge Cabell argued, the Constitution was simply silent on the issue of how disputes over the boundaries of federal and state competences would be settled. [49] This silence, in Cabell's view, derived from "the belief, that [to give the federal government or one of its organs jurisdiction to operate directly and in a controlling manner upon the states] would produce evils greater than those of the occasional collisions which it would be designed to remedy." [50]
Second, in Judge Cabell's view, the principle of appellate review implied that the appellate tribunal was "superior" to the tribunal whose decisions it reviewed. As the state courts and federal courts belonged to distinct sovereign systems, Cabell reasoned, the Supreme Court could be considered "superior" only to lower federal courts, not to state courts. [51]
Judge Cabell argued that locating Supreme Court jurisdiction in the text of the Constitution, which extends federal jurisdiction to all cases arising under federal law, went too far. The natural extension of such logic would be to give the Supreme Court appellate jurisdiction over the courts of England or France if their decisions conflicted with the US Constitution. [52] In Cabell's view, the state courts were no less independent than the courts of foreign nations.
The Supreme Court's decision in Martin, then, was an appeal from the Virginia court's refusal to obey the Supreme Court's earlier mandate. Justice Story rejected the Virginia court's arguments and found that the Constitution did, in fact, confer jurisdiction on the Supreme Court to resolve disputes over the boundaries of federal and state powers. Story's reasoning is derived primarily from the text of the Constitution itself, despite the fact that the Constitution is, as Judge Cabell correctly pointed out, silent on the issue. Behind Story's textual arguments lies a particular vision of the type of association of states the Constitution had formed. A necessary component of Story's vision, explained below, is the uniform application of federal law.
Story's opening statement in the body of the opinion, ostensibly intended as a "background" or an Ôintroduction" to the merits, is perhaps both the most important and controversial of the opinion: "the constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by Ôthe People of the United States.'" [53] From this fact flows the inexorable conclusion that the people, in establishing the Constitution, had the right to prohibit the states from exercising any power inconsistent with the general aims of the Constitution. [54] In other words, the people had the right to make the powers of the state governments and, by extension, the state judiciaries, subordinate to those of the nation in situations where they deemed it necessary.
Story's statement served to give the Court's opinion, and federal powers, direct democratic legitimacy, presumably intended to make the outcome more palatable to state courts and, more generally, state governments. While a detailed analysis of the historical accuracy of Story's assertion is beyond the scope of this article, it should be noted that his interpretation is disputed by constitutional historians. [55]
Justice Story then proceeded to the heart of the decision, also based on the text of the Constitution. Story combined two constitutional provisions, Article III Section 2 and the Supremacy Clause, to reach his decision.
According to Article III Section 2, jurisdiction attaches to the Supreme Court for all cases arising under the laws of the United States. The meaning of this provision, Story concluded, is that jurisdiction attaches to the Supreme Court as a consequence of the case, not the court from which the appeal is taken. [56]
Story then examined the Supremacy Clause, which provides that federal law shall be the supreme law of the United States and that "the Judges in every State shall be bound thereby." [57] In Story's analysis, this provision would be meaningless if the drafters of the Constitution had "not only contemplated, but meant for cases within the scope of judicial power of the United States" to be decided by state tribunals. [58]
The combination of these two provisions led Story to the conclusion that the Supreme Court had the constitutional authority to review state court decisions. Since the Supreme Court's appellate jurisdiction extended to all cases arising under federal law, regardless of the court in which a decision was reached, and the Constitution contemplated that state courts should rule on cases in which federal law was at issue, it logically followed that the Supreme Court may overrule or uphold state court decisions, and that its judgments were binding on state courts.
Despite its seeming logical consistency, this portion of Story's opinion, which ultimately forms the legal basis for Supreme Court jurisdiction, actually begs the question at hand. The issue is not whether the Supreme Court has jurisdiction to hear all appeals of federal law; the issue is whether the Supreme Court has the authority to decide whether a particular issue is a matter for federal appeal in the first place. [59]
Ultimately, then, Story's textual analysis in Martin did not address the underlying issue. This analysis was, rather, a logical screen to cover the policy decision that uniformity of federal law was a fundamental policy goal of Story.
It is here that Story's opening statement about "the American people" guided his view: since a single people formed the Constitution, it is logical that a single body of law should apply to all American people. Such uniformity would, however, be impossible if state judges' interpretation of federal law were not reviewable:
[i]f there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy in two states. The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the constitution. [60]
The need for a "revising authority" provided Story the means to locate the Supreme Court's role as the ultimate authority on what constitutes federal law in the interstices of Article III and the Supremacy Clause.
Story bolstered his uniformity analysis with assertions of "historical fact." Unfortunately, the historical accuracy of these facts is debatable. For example, according to Story, the Supreme Court's authority to draw the lines of federal power was specifically contemplated at the Constitutional Convention and during the deliberations of the first Congress. [61] This proposition, if true, adds a degree of legitimacy to the outcome. However, it simply ignores the fact that Patrick Henry and James Madison were among of the most virulent opponents of the Supreme Court at this time. [62]
Another of Story's "historical facts" was that
the supreme court of the United States has, from time to time, sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals of many of the most important states in the union, and that no state tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the supreme court, until the present occasion. [63]
Even if true, this does little to legitimate the legal basis of Story's position: the mere fact that state courts had not previously disobeyed a Supreme Court mandate, though giving rise to de facto authority, does not create de jure authority for the exercise of that power. At any rate, it is untrue. Although state courts had not offered serious resistance in cases which reached the Supreme Court, there were cases which did not reach the Supreme Court, in which state courts had, in fact, specifically rejected the Supreme Court's authority. [64]
As a final note to the Martin case, which is of relevance to the European context, [65] a concurring opinion further developed Story's fears of nonuniformity, stating that the "tranquillity of the union, internally and externally, may materially depend" on the Supreme Court having the final word on questions of federal power. [66] However, the concurrence opined that the authority of the Supreme Court should rest, not on its supremacy over state courts on constitutional interpretation, but rather on a superior claim upon the "comity" of the state tribunals." [67]
In sum, while Story's arguments in Martin seem compelling and, with the hindsight of history, inevitable, it is important to realize that these arguments rested ultimately, not on explicit textual provisions, but on policy considerations. [68] Nonetheless, both the textual/legal analysis and the policy arguments were important to the American experience. Each is a "prism" through which to view the issue, and both "prisms" prove relevant to an analysis of the European situation.
The Supreme Court never strayed from its decision in Martin and subsequently reaffirmed its principles quite forcefully. The next significant pronouncement on the subject came in 1819 in the case of McCulloch v. Maryland. [69] Chief Justice Marshall's opinion, like Story's in Martin, emphasized the democratic legitimacy of the United States government: "the government of the Union, then,...is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." [70]
The Supreme Court's decision in McCulloch was met with vehement opposition in many of the southern states. Not surprisingly then, the next case in which the issue arose, Cohens v. Virginia, [71] was once again a conflict with Virginia. Chief Justice Marshall's opinion in this case, which involved the appeal of a criminal conviction, has been lauded as an "immortalist nationalist address" and "one of the strongest and most enduring strands of that mighty cable woven by [Marshall] to hold the American people together as a united and imperishable Nation." [72] Marshall, like Story in Martin, focused on democratic legitimacy, [73] the spirit of the Constitution and uniformity, albeit with more eloquence.
Marshall's opinion also added a more refined discussion of the "nation." The concept of the United States as a nation was intimated by Story in Martin but was not explicitly developed. Unlike Marshall, Story did not repeatedly employ the term "nation" when referring to the United States, [74] a term which leaves little doubt as to the Supreme Court's vision of the Constitution's spirit. The term "nation" connotes a common experience and character of the citizens of the several states. In other words, it implicitly rejects a confederation of different peoples and states and embraces a federation of common peoples. From this vision followed the conclusion that the federal government must have supreme authority to decide issues of vital national interest. Furthermore, Marshall added, the Supreme Court, the "Court of the Nation," [75] must possess the ultimate authority to define the nation's "vital interests."
The Supreme Court's authority was at issue in a number of subsequent cases, but the Court never faltered from its position. The positions taken by both sides were the same as in Martin, McCulloch, and Cohens, and the judicial reasoning provided no new ways of approaching the problem. Justice Story cast the mold in Martin; the ensuing political debate would reveal whether any state or states would or could break it.
The debate over the ultimate authority to decide the limits of federal power was not limited to disputes between state courts and federal courts. In fact, the court proceedings were but a fraction of the struggle. State legislatures, executive branches and influential constitutional theorists, including several of the Founding Fathers, [76] joined in support or opposition to Supreme Court jurisdiction. Thus, an analysis of the broader historical and political debate is fundamental to an understanding of the American experience. It is important to stress, at the outset, that it should not be inferred that the political debate was, in the end, the decisive factor, and that the Supreme Court's jurisprudence played only a minor role in the resolution of the conflict. At all times, the Supreme Court's decisions, and the reasoning contained therein, shaped, limited and set the tempo of the political debate.
The end of the 18th and beginning of the 19th centuries, culminating in the Civil War, was a time of consolidation of federal power. The debate over Supreme Court jurisdiction was part of the broader debate that accompanied this consolidationÑthe debate of states' rights versus federal powers, federalism versus nationalism. [77] In other words, it was an element of the debate about the nature of the United States itself. [78] At their essence, decisions such as Martin and McCulloch were nationalist. The reaction against these decisions was, therefore, strongest from states' rights advocates.
The most prevalent response to the Supreme Court's decisions was acceptance by the states. This cannot be emphasized strongly enough, despite the vivid opposition rhetoric, and this article's focus on such opposition. Some state courts acquiesced to the Supreme Court's jurisdiction; other state legislatures explicitly embraced it. [79] Interestingly, individual states' positions were not constant with time. Ohio, for example enacted nullification legislation [80] in opposition to the Supreme Court in 1821, stood by the Supreme Court and against South Carolina and Georgia in 1832, and again opposed the Supreme Court in 1856. [81] As a result, a detailed survey of this issue's evolution yields the impression that almost every state in the union, at one time or another, rejected the Supreme Court's jurisdiction. Of considerable consequence, however, is that, at any given time, only a few states actively voiced their opposition.
Despite this predominant acceptance, the Supreme Court's authority was opposed, at both the state and federal levels, and in all branches of government. Before examining each of the different manifestations of opposition to the Supreme Court's jurisdiction, it is useful, as a first step, to analyze the grounds upon which rejection was based, for the grounds were common to all responses.
First and foremost, opponents of the Supreme Court simply rejected the Court's vision of the United States having been created by "the people." The fundamental assumption of states' rights advocates was that "the Constitution as an instrument of government did not emanate from the people but resulted from the acts of sovereign and independent states." [82] In this view, the United States was an "international organization" created by a "treaty" among independent actors. [83]
According to states' rights advocates, the states would never have ceded to the federal government, considered another party to the "treaty," the power to determine its own powers at the expense of the other parties. Rather, the states, as parties to the treaty, possessed the power to "decide for themselves, and each State for itself, whether, in a given case, the act of the general government transcends its power." [84]
Second, states' rights proponents rejected the Supreme Court's interpretation of federal supremacy. The Virginia legislature proclaimed that, although the Supreme Court had authority to interpret the Constitution as between the branches of the federal government, this authority could not "extend to questions which would amount to a subversion of the Constitution itself, by the usurpation of one contracting party or another." [85] It did not escape the Virginia legislature, or the other states' rights advocates, that Story's textual analysis in Martin did, in fact, beg the ultimate question. States recognized the supremacy of federal law, but not the supremacy of federal judges. [86]
Third, the Supreme Court's concern over uniformity was summarily dismissed by anti-nationalists. Nonuniformity was viewed as an inevitable result of the United States being a group of free and independent governments. [87] A committee of the Virginia legislature concluded that "it is highly probably [that the framers of the Constitution] preferred [nonuniformity] to that fearful and absolute supremacy, which could alone invest one government with power to abrogate the rightful laws of another." [88] Minor conflicts, it was assumed, would not disturb the proper functioning of the governmental system. [89]
The issue of uniformity highlights the competing visions of the United States. Uniformity is not a major concern only when one's baseline is a confederation of states. Such a loose association of states presumably will not be bestowed with competences of significant number or importance; conflicts, then, are necessarily few in number and involve relatively "minor" issues. On the other hand, a federation implies a closer association of states, endowed with numerous competences of significant importance. In this case, nonuniformity of law threatens the very existence of the federation.
In short, states' rights advocates rejected every premise on which the Supreme Court based its jurisdiction in Martin and subsequent decisions. In their view, Story and Marshall had effectively amended the Constitution through judicial interpretation. [90] Given the states' rights position that, because the states were the actual parties to the Constitution, the states alone were authorized to amend it, [91] the scene was set for confrontation on several fronts.
i. Judicial Opposition
Judicial opposition to the Supreme Court's claim of authoirty came as early as 1798, when the Supreme Court of Pennsylvania stated that the Constitution provided for no tribunal to decide the limits of federal power. [92] Virginia's judicial opposition to Martin has already been detailed; the Virginia judges did not retreat from their position and continued to offer what was perhaps the most enduring and significant resistance to the Supreme Court's jurisprudence. [93]
Other states, mostly in the South and the West, joined the attack at various times. In 1830, the Georgia courts ignored a Supreme Court stay of execution order pending appeal of a criminal matter and permitted the accused to be hanged. [94] Then, in 1854, the Georgia Supreme Court held that the Supreme Court "has no appellate or other jurisdiction over this Court." [95] In the same year, the Supreme Court of California decried other state courts' acceptance of Supreme Court jurisdiction, asserting that "the acquiescence in this usurpation of the Federal Tribunal under an act of Congress [is] not warranted by the Constitution." [96] The state supreme courts of Wisconsin and Missouri, in acts of defiance similar to Georgia's, refused to comply with Supreme Court mandates in 1859 and 1872, respectively. [97]
ii. Legislative Opposition
Even more numerous, and usually more vehement, than state court denunciations of Supreme Court jurisdiction were legislative challenges. Legislative resolutions typically came in response to particular Supreme Court judgments, thus underscoring the manner in which the Supreme Court's decisions determined the timing of the debate and molded its content. As expected, the Virginia legislature was one of the leaders of the opposition. It enacted resolutions in 1819 specifically denouncing the Supreme Court's assumption of jurisdiction and calling on its senators to introduce a constitutional amendment to create a procedure for resolving conflicts of federal and state competences. [98] By 1824, South Carolina, Ohio, Kentucky and Georgia had all adopted similar resolutions. [99] Georgia passed a resolution declaring "[t]hat any attempt to reverse the decision of the Superior Court...by the Supreme Court of the United States, will be held by this State as an unconstitutional and arbitrary interference in the administration of her original laws." [100] The Wisconsin legislature, in 1859, adopted a resolution calling the Supreme Court's assumption of jurisdiction "an arbitrary act of power...prostrating the rights and liberties of the people" and claiming that only the states could judge the limits of power granted in the Constitution. [101]
Certain state legislative resolutions went further than simply renouncing Supreme Court jurisdiction, however, and called for active resistance. The Kentucky legislature requested the governor to inform it "whether...it may be advisable to call forth the physical power of the State to resist the execution of the decisions of the Court..." [102] Similarly, Georgia's legislature required the governor "with all power and means placed at his command to resist and repel any and every invasion, from whatever direction it may come, upon the administration of the criminal laws of the State." [103]
In 1828, South Carolina declared the famous policy of "nullification," according to which a state could declare an act of the federal government void and not binding in that state. [104] Under this doctrine, if a state felt an act by the federal government was unconstitutional, it would "interpose" itself in that area to protect its rights. South Carolina's nullification ordinance became a major issue in the presidential campaign of 1832, with Andrew Jackson claiming that the nullification ordinance both threatened the very existence of the Union and contradicted the express language of the Constitution. [105]
The nullification debte escalated when the South Carolina legislature passed a resolution supporting the right to secession. The debate then reached a feverish climax in 1833 when armed confrontation appeared imminent: South Carolina called for volunteers and the President requested Congress' permission to enforce federal tariff laws in South Carolina. [106] Conflict ultimately was averted [107] when Congress enacted a compromise tariff bill and South Carolina suspended its Nullification Ordinance. [108]
iii. Proposed Constitutional Amendments
Constitutional amendments were also introduced to resolve to conflict. The simplest constitutional amendments, and most destructive from the standpoint of federal power, proposed an express declaration that the states retained the authority to define the limits of federal power. [109] None of these amendments garnered widespread support; all were ultimately defeated in Congress. [110]
Other proposed amendments, however, attempted to resolve the issue more creatively, by offering more than a simple rejection of the Supreme Court's power. All aimed to remove the power, to varying degrees, from the political influences under which the Supreme Court justices were presumed to adjudicate. The first, which recognized the constitutional authority of the Supreme Court, would have required a two-thirds majority of justices in cases involving disputes over the limits of federal power. [111]
A second amendment, proposed in 1821, would have referred such controversies to the Senate. [112] Interpretation of the Constitution, claimed states' rights advocates, was in reality an exercise of political power, not legal reasoning. [113] Therefore, it was reasoned, the Senate, whose members are responsive to the states' political concerns, [114] would be a more legitimate arbiter of federal power disputes.
Finally, it was suggested on several occasions, including after the Civil War, that a "Court of the Union" be established to decide "all questions of constitutional power that shall arise in the Government of the United States and all conflicts of jurisdiction between it and the State governments." [115] Under a typical proposal, the Court was composed of one judge from each state, to be appointed by the state, and decisions required an absolute majority. [116]
None of the proposed amendments ever acquired enough support even to be submitted to the states for ratification. The primary explanation is that the states displayed "a marked lack of agreement" concerning the issues most vital to states' rights and the most practical method for resolving disputes. [117] In addition, as explained above, states' official positions changed over the course of time; [118] opposition to the Supreme Court came most frequently only after a Supreme Court decision affected a particular state. Such cases, however, were not frequent. [119] As long as that state's legislation was left undisturbed by the Supreme Court, the state tended not to challenge the Supreme Court's jurisdiction.
The Supreme Court's authority had been, for the most part, accepted by the end the Civil War. In fact, as described above, the conflict over Supreme Court jurisdiction was one of the factors leading to the Civil War. [120] Secession was, after all, the ultimate assertion of states' rights over the federal government. Despite subsequent minor "aftershocks," such as the Missouri Supreme Court's 1872 challenge, no serious or threatening opposition was leveled at the Court for the better part of the following century.
In 1954, however, the Supreme Court's decision in Brown v. Board of Education [121] provoked a reaction among certain states, all of them southern, [122] which invoked the rhetoric of the 19th century debate. A Senator from Georgia and a Representative from Virginia introduced in the US Congress a "Southern Manifesto," declaring that the Supreme Court's decision was an "unwarranted exercise of power" and "contrary to the Constitution"Ñin short, that the Court had acted ultra vires. [123] In southern state legislatures, resolutions of "Interposition and Nullification" were passed. These resolutions repeated the basic tenet of pre-Civil War states' rights advocates, that the states were parties to the Constitution, and drew the same conclusions: "the judgment of all of the parties to the compact must be sought to resolve the question...[because] the question of contested power should not be settled by the creature seeking to usurp the power..." [124] Virginia's legislature declared the need for the state to interpose itself in the field of education in order to preserve the rights and liberties of the citizens of Virginia; Virginia had "remained silent...too long silent!" in the face of the federal government's acquisition of new competences, and it felt that the line had to be drawn at education. [125]
Opposition in the aftermath of Brown also occurred in the courts. In Cooper v. Aaron, [126] the Supreme Court overruled a federal district court judge in Arkansas who had granted a suspension of the court-ordered school integration while the Court's ruling in Brown was challenged. [127] The Supreme Court, citing Marbury, declared that it was "emphatically the province and duty of the judicial department to say what the law is" and that "the federal judiciary system is supreme in the exposition of the law of the Constitution." [128] The Supreme Court's decision was unanimous; it is unimaginable that the outcome could have been otherwise.
The ultimate resolution of Brown, Cooper and the school desegregation crisis, decision, well known to all, was President Eisenhower's decision to send federal troops into Little Rock, Arkansas in order to force compliance with the court's desegregation order. [129] In addressing the nation, Eisenhower stated that "[a] final order of a federal court...must be obeyed by state authorities and all citizens as the law of the land." [130]
Recent challenges to Supreme Court jurisdiction have also come in less dramatic fashion. In 1963, an amendment to the Constitution was proposed under the auspices of the Council of State Governments to create a Court of the Union, almost identical to that proposed before the Civil War. [131] This court would have been convened upon demand of five state legislatures to review a judgment of the Supreme Court concerning the allocation of federal power. The chief justices of each of the fifty states would have sat on the court and an absolute majority would have been required to render a decision. [132]
The most recent "challenge" occurred during the Reagan administration by Attorney General Edwin Meese. In a 1986 speech, Meese raised questions about the Supreme Court's role as the ultimate authority on the meaning and limits of the Constitution. [133] While Meese did not attack the Supreme Court outright, he did stress "the right of the people to govern themselves through the democratic process." [134] In Meese's view, constitutional interpretation, then, was "not the business of the Court only, but also properly the business of all branches of government." [135]
In response to tremendous criticism, Meese backed down and recognized that Supreme Court decisions are "binding precedent on lower federal courts as well as the state courts" and "entitled to a very high respect and consideration in all parallel cases by other departments of government, both federal and state." [136] Meese maintained that, although the Reagan administration disagreed with many of the Court's decisions, especially those regarding states' rights, it stood firmly committed to "the integrity of the Constitution." [137]
At this point, a brief recapitualtion of the US experience, including the norms of analysis which emerge from it, is usesful as an introduction to the European situation.
First, the issue arose during a period of consolidation of federal power. The US Constitution emerged in the wake of the ineffectual Articles of Confederation, and the debate over how far federal powers should extend was still raging throughout the Union. Concurrent to the expansion of federal competences was the increasing power of the Supreme Court within the federal government.
Second, the debate assumed a decidedly legal character and reached its most heated moments directly following Supreme Court decisions. The legal principles, as detailed above, [138] all flowed from the principle of democratic legitimacy. Justices Story and Marshall used the premise of democratic legitimacy, located in the text of the Constitution as well as the justices' view of American history to establish the legal foundation for Supreme Court jurisdiction. In addition, the Supreme Court stressed the policy of uniformity to bolster further its textual conclusions.
Third, states' opposition to Supreme Court jurisdiction was passionate, forceful and enduring. Whereas many states accepted the Supreme Court's jurisprudence, a substantial number, at various times and to differing degrees, resisted and denounced it. The Supreme Court's authority was by no means to be taken for granted. Furthermore, although the issue has been effectively settled for more than a century, recent challenges, whose rhetoric harks back to the 19th century, remind that states' rights advocates still raise their voices when they feel the Supreme Court has gone too far.
In short, the issue in the US has been an interplay of law and politics. Legal foundation was fundamental but ultimately insufficient; political acceptance had to be won as well.
The Federal Constitutional Court's Maastricht decision comes at a time when the European Union's competences are increasing, both in number and importance. Such is the essence of the Treaty of Maastricht. The Federal Constitutional Court, in recognition of this expansion, devoted the first portion of the Maastricht decision to a discussion of the foundations of the European Union and an extensive cataloging of the areas in which the Union has gained new or expanded competences.
The increase of competences, and the concomitant consolidation of power at the European level, is not a new phenomenon introduced by the Treaty of Maastricht, however. Rather, the process of shifting power to the European institutions has been occurring, at various rates, since the early 1970s. [139] The result of this process is the view that "[t]here simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Union." [140]
Professor Weiler has detailed the two primary modes in which this "mutation of jurisdiction and competences" has occurred: absorption and expansion. [141] Absorption is the phenomenon by which Union legislation in an area of undisputed Union competence affects and is affected by Member State legislation in a wholly-unrelated field. For example, in the Casagrande case, [142] a Council regulation concerning vocational training conflicted with a German statute on educational grants. Although it recognized that educational policy was not literally contained in the competences granted by the Treaty of Rome, the ECJ declined to limit the reach of Union legislation simply because it affected national measures. [143] "The Court said that it was not the Union policy that was encroaching on national educational policy; rather, it was the national educational policy that was impinging on Union free-movement policy and thus must give way." [144] Justice Dieter Grimm of the Federal Constitutional Court called this the "inherent logic" of the European Union: if one of its goals is touched, the European Union presumes competency to act. [145]
The process of expansion exceeds the reach of absorption in that it creates original jurisdiction in areas where the Union originally had none. [146] In this sense, expansion "breaks out" of the competences contractually transferred to the Union. [147]
Expansion of competences at the European level has occurred primarily via the application of article 235 of the Treaty. [148] Beginning in 1973, European institutions increased dramatically their resort to article 235 as a basis for competence to act, [149] using it to conclude international agreements, grant emergency food aid, create new institutions and enact legislation aimed at the improvement of working conditions and the fight against poverty. [150] With respect to international agreements, for example, article 235 permitted the Union to act where "the objective exceeded the sphere of its competences." [151]
The ECJ took a highly permissive stance toward this institutional use of article 235 as a means of expanding European competences. Instead of a strict construction, which would have limited article 235 to a "true" implied powers clause, [152] the Court opted for a McCulloch-like approach to the terms "objectives" and "necessary." First, the "objectives" of the European Union, set forth in articles 2 and 3 of the Treaty of Rome, [153] were given expansive meaning, [154] including, sometimes, the creation of new objectives. [155] Second, the Court construed the requirement that the action be "necessary" [156] to achieve the objective in a manner which granted wide legal reach to the Union. [157] In fact, the Court did not even require that article 235 be necessary to achieve the objectives; the Council could rely on article 235 as a basis for action despite the fact that alternative legal bases existed in the treaty. [158] Such a formulation provided the Union with ample latitude to expand Union competences "legally," that is, with the implicit and sometimes explicit stamp of approval by the ECJ.
The Federal Constitutional Court explicitly attacked this "mutation of competences." It took aim at the ECJ's jurisprudence which permitted expansion and rejected the doctrines of "implied powers" and "effet utile" [159] as valid methods of treaty interpretation. [160] Such an interpretation, the Federal Constitutional Court intimated, would be considered in the future to be an amendment to the treaty, with the consequence that Germany would not be legally bound to implement acts based on such "dynamic expansion" of the treaty.
The process of absorption was also targeted by the Federal Constitutional Court. The Court's admonition that it would examine whether "legal acts of the European institutions and organs are within or exceed the limits of the sovereign rights granted to them" [161] is not limited merely to European acts based on article 235. Rather, it means that all acts of the Union, regardless of which article in the treaty forms the basis for action, are subject to the condition that they not be equivalent to treaty amendment. Should actions at the European level be equivalent to treaty amendment, German organs would be constitutionally prohibited from implementing them. [162]
The Federal Constitutional Court also pointed to the subsidiarity principle, outlined in article 3b of the Treaty of Maastricht, as a means of limiting the broadening of the Union's competences. [163] According to the Court, subsidiarity builds on the principle of limited sovereign authority and further limits it. [164] Rather than creating new competences, subsidiarity limits the exercise of existing competences. In other words, it determines "whether and how" the European Union may exercise a particular competence. [165] This point was emphasized by the Court in its decision and by Justice Grimm in a recent speech. [166] Ultimately, the Court stated, observance of the subsidiarity principle should "safeguard the Member States' national identity and preserve their competences." [167]
In sum, the consolidation of federal power underlay both the Maastricht decision and the legal and political battle waged in the US. There are important differences between the two, however. It is widely recognized that the transfer of competences from the Member States to the European Union level went, to a large degree, unnoticed in Europe. [168] This is in stark contrast to the intense political and judicial exchanges in the US. This difference makes sense in light of the structural differences between the US and the European Union. In the US, the shift of competences to the independent federal government occurred at the expense of state governments. In Europe, on the other hand, the shift of competences was from Member State governments to the European Council, which is comprised of the governments of the Member States. Thus, the transfer is not zero-sum as in the US. Furthermore, the period of expansion of Union competences was marked by a de facto unanimous voting requirement in the Council on all matters. [169] Thus, the new competences exercised at the Union level did not threaten Member State autonomy and sovereignty to nearly the same degree as in the US, as it was the Member State governments themselves which exercised the new Union competences. [170]
Different, too, is the scope of the debate in Europe. The Federal Constitutional Court does not question the ECJ's general appellate authority over German courts. In fact, the Federal Constitutional Court has explicitly recognized that ECJ judgments pursuant to article 177 are binding on all courts of Member States. [171] This principle remains undisturbed by Maastricht. Rather than opposing ECJ appellate jurisdiction in the absolute, the Federal Constitutional Court has limited its opposition to the "extreme" cases where interpretation of the treaty is so loose as to amount to amendment. While this distinction admittedly disappears at the margins, especially in the face of expansionist European institutions (including the ECJ), it remains a significant contrast to the US experience.
Interestingly, the European debate over the consolidation of federal power has been energized in the wake of the Single European Act and the entry into force of the Treaty of Maastricht. One need look no further than the Danish "no" and the French "we guess so" to the ratification of the Treaty of Maastricht to grasp the profound change that has recently occurred. It is with this background that the Federal Constitutional Court issued its Maastricht decision.
The Maastricht decision also comes in the wake of the ECJ's expansion of its own reach. This is, in part, a natural corollary to the increase of Union legislative competences: the ECJ hears and rules on cases in the expanded areas of expanded Union activity. It goes further however. The ECJ's jurisdiction has also been extended through its own decisions. In the Foto Frost decision, [172] the ECJ declared that it alone possessed the authority to declare a Union act invalid. While Member State courts are free to uphold the validity of a Union act, the Court explained, they are required to make an article 177 reference to challenge its validity. [173] In other words, the ECJ declared that it was the final arbiter of federal power disputes. [174]
Here again the parallel to the US experience is notable. The Supreme Court had assumed jurisdiction in sixteen cases without direct challenge before Virginia's rebellion in Martin. This is not to say that the Supreme Court's jurisdiction was conceded: the statement of the Chief Justice of the Supreme Court of Pennsylvania is evidence to the fact that it was not. [175] The Federal Constitutional Court made statements of similar effect in Kloppenburg, decided just six months before Foto Frost. [176] The statement was made, however, in the context of a decision favorable to the ECJ's power; this particular issue was not the focus of the case. Like the Pennsylvania case, Kloppenburg was never reviewed by the federal court (in this case, the ECJ).
While an examination of the background growth in centralized political power is important as a means of suggesting why this issue arose at this particular time, it ultimately does not fully explain why the case came out in this particular way. True, underlying political motivations play an important role in any adjudicative procedure. Nonetheless, like the Supreme Court in the US, the Federal Constitutional Court had to find, in the end, a legal basis for its decision. In the final analysis, the single most important factor in both the European and American contexts was democratic legitimacy.
With regard to democratic legitimacy, the most striking difference between the United States and the European Union is found in the preambles to the US Constitution and the Treaty of Maastricht. As Justices Story and Marshall repeatedly emphasized, the US Constitution begins with the phrase, "We the people;" the foundation on which Martin and subsequent cases are based is the notion that the authority of the federal government emanates directly from the American people. The Treaty of Maastricht, on the other hand, opens with "His Majesty the King of the Belgians; Her Majesty the Queen of Denmark; The President of the Federal Republic of Germany...," [177] leaving no room for doubt that the parties to the Treaty of Maastricht are the sovereign states of Europe, not the "people of Europe." The preamble to the Treaty of Maastricht repeats this point, in a more subtle fashion, as it lays out the general aims of the contracting parties: "...to continue in the process of creating an ever closer union among the peoples of Europe..." [178] The treaty does not refer to a singular European people; rather, the many peoples of Europe are recognized as distinct groups.
The Federal Constitutional Court explicitly acknowledged these foundations of the European Union. The Federal Constitutional Court stated that "[t]he Union Treaty establishesÑas mentionedÑan association of states for the realization of an ever closer union of the peoples of Europe (organized in the form of states), not a state based on a European people." [179] As if to drive home its point, the Federal Constitutional Court added, "[i]n any case, establishing a ÔUnited States of Europe' with state status comparable to the United States of America is not currently intended." [180]
This contrast between the US and Europe highlights the different nature of the US Constitution and the Treaty of Maastricht. A constitution, by definition establishes the basic principles and laws of a nation or state; an international treaty, on the other hand, specifies the contractual rights and duties of (more than one) distinct sovereign states. This difference escaped neither the Supreme Court nor the Federal Constitutional Court. [181] To this extent, the Federal Constitutional Court's conclusion that it remains the final judge of the allocation of European and Member State competences seems almost inescapable. The Federal Constitutional Court is simply reserving for itself the right to interpret an international treaty. As the Court stated in Kloppenburg, "the Member States are now, and always have been, the masters of the [Union] treaties." [182]
The problem with the Federal Constitutional Court's analysis, however, is that the Treaty of Maastricht is not a traditional, "run-of-the-mill" international treaty. Prior to the "mutation of competences" of the 1970s and 1980s came "the constitutionalization" of the Treaty of Rome. [183] This process included establishing the doctrine of direct effect, the principles of the supremacy of European law and preemption, as well as ECJ review of European acts for human rights violations. [184] The debate remains whether the Union remains merely a supranational organization or whether the process of constitutionalization, which has progressed to the point where the ECJ refers to the Treaty of Rome as the Union's "basic constitutional charter," [185] has gone so far as to transform the Union into something different, more closely resembling a state. In the eyes of the Federal Constitutional Court, at least, the European Union remains a supranational organization, equipped with sovereign powers but far from constituting a European state. [186]
Another crucial difference in democratic legitimacy between the United States and the European Union lies in the institutional structures of the two systems. In the United States, not only the Constitution, but also the institutions of the federal governmentÑthe Congress and the presidencyÑderive their legitimacy from the American people. In the European Union, however, direct democratic participation at the European level is severely restricted. In the Federal Constitutional Court's view, the only real democratic legitimacy is ahieved through the participation and influence of the Member State parliaments. [187]
These two differences in democratic legitimacy between the United States and the European Union prove to be the decisive factors that guide the courts' decisions. The text of neither the US Constitution nor the Treaty of Maastricht contains an explicit grant or prohibition of court authority to determine the limits of federal power. [188] Yet, out of the courts' views on democratic legitimacy come different styles of textual interpretation; these styles ultimately determine the outcome of the debate.
The Supreme Court used the implied powers doctrine to locate its authority in the interstices of the Supremacy Clause and Article III. This doctrine is a direct product of its views on the democratic legitimacy of both the Constitution and the institutional exercise of federal power.
In contrast, the Federal Constitutional Court, with its view of the Treaty of Maastricht as an international treaty, called for strict textual construction. [189] Significantly, this was a rejection of the ECJ's methodology of treaty interpretation. In its landmark 1963van Gend en Loos decision, the ECJ stated that, in interpreting provisions of the treaty, "it is necessary to consider the spirit, the general scheme and the wording of those provisions." [190] To the ECJ, the "spirit " of the treaty enjoys a higher position in the hierarchy of treaty construction than the actual text. The Federal Constitutional Court seems to be saying that, until the state of democracy in the European Union is improved, it will not permit the ECJ to use a style of textual interpretation similar to the US Supreme Court's.
What about uniformity? As discussed above, the policy of uniformity in the application of federal law was a crucial consideration in guiding the Supreme Court's decision in Martin, as well as the ensuing political debate. [191] The Supreme Court and the nationalists considered uniformity of paramount importance, while states' rights advocates maintained that a few minor cases of nonuniform application did not warrant acquiescing to Supreme Court jurisdiction. Thus far, however, the word "uniformity" has not been mentioned with respect to the current debate in Europe. The reason is simple: the Federal Constitutional Court simply ignored uniformity. It is nowhere to be found in the Maastricht decision.
This is not to say, however, that the policy of uniformity has not previously been discussed by the Federal Constitutional Court. The dissent in Solange I raised the specter of situations in which "legal rules of the Communities are applicable in some Member States, but not in others." [192] Such nonuniformity, argued the dissent, translated into "exposing a part of European legal unity, endangering the existence of the [Union,] and negating the basic idea of European unification." [193] Similarly, in Kloppenburg, the Court, this time the majority, recognized uniformity as a valid policy consideration. The Court characterized article 177 as contributing "to the interpretation and application of [Union] law in as uniform a way as possible by all courts within the ambit of the EEC Treaty, in the interest of the Treaty objective of integration, certainty as to the law and equal application of the law." [194]
Certainly, the importance of uniformity has also been recognized at the European Union level. In fact, one could argue that the uniform application of law is the very essence of the European Union: the Treaty of Maastricht strives, among other things, toward a "convergence" of Member State economies and closer coordination of foreign policy, security policy, justice and domestic affairs. [195] As for the ECJ, it has explicitly embraced uniformity of material obligation as a primary policy consideration. [196] Uniformity underlies the principle of direct effect, established in van Gend en Loos; direct effect ensures uniformity by enabling individuals to be the private advocates-general of the Union by forcing article 177 references. [197]
Given the fact that uniformity had been considered prior to Maastricht, both by the ECJ and the Federal Constitutional Court, it is not entirely clear why uniformity was not even mentioned in Maastricht, if only to be summarily rejected. The explanation most likely lies in the current attitude toward the European Union of Europeans in general, and the Federal Constitutional Court in particular. In the words of Justice Grimm, the current feeling in Europe is that there is "too much uniformity." [198] A version of this sentiment probably underlies the Maastricht decision. It is illustrative in this regard to contrast the Federal Constitutional Court's attitude towards the ECJ in Kloppenburg and Maastricht. In Kloppenburg, where the Court supported uniformity, it portrayed the ECJ as proceeding "cautiously" in developing its direct effect jurisprudence. [199] In Maastricht, on the other hand, the Court denounced the ECJ's (and other European institutions') "liberal" interpretation of article 235. [200]
Another likely explanation for the absence of a uniformity discussion is the nature of the issues involved in the different cases. In both Solange I and Maastricht, where the Court's decision threatens yet ignores uniformity, [201] fundamental constitutional principles such as human rights and democracy were at stake. Kloppenburg, in contrast, involved merely a Value Added Tax directive. To this extent, the Court's silence on uniformity could be read as a statement that the policy of uniformity simply does not rise to the level of importance of the constitutional principles of fundamental rights and democracy.
Finally, similar to state opposition to the US Supreme Court, German opposition to the ECJ's jurisdiction has been consistent, although not constant. The Federal Constitutional Court first expressed its views on court jurisdiction in Solange I. Despite its relaxation in attitude in Solange II, twelve years later, the Federal Constitutional Court did not concede final authority to the ECJ; it did, however, acquiesce in the ECJ's jurisdiction over day-to-day management of fundamental rights cases. Only one year later, however, the Federal Constitutional Court reaffirmed its position that ECJ jurisprudence was limited by German constitutional principles and that the Member States remained the "masters of the treaty." [202] The Maastricht decision is the latest, and strongest since Solange I, challenge to the ECJ. It is this steady opposition that leads to Germany's appellation of "the Virginia of Europe."
What is different in Europe is the tenor of the debate over ECJ jurisdiction and the division of powers between the European Union and the Member States. Despite its warnings about the interpretation of article 235, the Federal Constitutional Court never chastised the ECJ directly. In fact, it recognized the ECJ's position in the protection of fundamental rights. Similarly, one finds neither disparaging characterizations of the ECJ as a "usurper" of sovereign powers reserved for the Member States nor apocalyptic warnings of the threats to individual rights and the viability of the Member States.
Of course, any comparison of the United States and the European Union has inherent limitations. Differences between the two systems abound. Therefore, in order to complete the European picture, it is necessary to examine features unique to the European Union which have played and will continue to play a major role in the evolution of the European debate over the division of competences.
The first feature, which has already been discussed briefly, [203] is the decision-making structure of the European Union. Because the European Council is comprised of Member States, the division of competences between the European Union and the Member States is not a zero-sum affair. Although competences are transferred from Member States to the Union, Member States retain a pivotal role in the drafting of legislation. This is markedly different than the United States, where any transfer of competence to the federal government comes at the expense of the state governments; state governments have no formal role in the federal legislative process.
The consequence of this institutional difference was that the "mutation of competences" in the European Union of the 1970s and early 1980s occurred relatively quietly, and even had the assistance of the Member States. The de facto unanimity requirement established by the Luxembourg Accords meant that Member State governments had almost total control over the decision-making process. [204] Transferring competences to the Union resulted in a nearly zero net loss of power for the Member State governments. Therefore, the Member States "had some incentive, in transferring competences to the Union, to escape the strictures, or nuisance, of parliamentary accountability." [205]
The institution of qualified majority voting by the Single European Act in 1986 has significantly reduced this incentive. Although the division of competences between Member States and the Union is still not the zero-sum game of the United States, the cost to Member State governments of transferring competences to the Union is today much greater than before 1986. As the Federal Constitutional Court recognized, Member States are bound by decisions of the Union, regardless of whether they voted for or against the legislation. [206]
This change in voting brings at least two possible consequences, one positive and one negative (in the eyes of the Federal Constitutional Court), to the debate over the division of competences. From a positive perspective, it suggests that Member States might be more careful in the future about transferring competences to the European Union. More importantly, once competences have been transferred, Member States might naturally refrain from seeking to expand Union competences through broad treaty interpretation, for fear that such interpretation could eventually be used to their disadvantage by other Member States. Certainly, the Federal Constitutional Court would view this as a positive development.
On the other hand, the very existence of qualified majority voting accentuates the democratic legitimacy problems raised by the Court. Now, Member State citizens are faced with the situation that their national voice can be a minority in the Union and be overridden by other national voices. [207] Although the Federal Constitutional Court stated that qualified majority voting is not, by itself, unconstitutional, [208] the disappearance of unanimity is one of the factors leading to the heightened awareness of the Union's democratic shortcomings.
The second, and more important, distinguishing characteristic of the European Union is largely procedural. The Federal Constitutional Court mentioned its "cooperative relationship" with the ECJ. [209] In order to hear a case, the ECJ depends, for the most part, on Member State article 177 references. Although articles 169, 170 and 173 confer jurisdiction on the ECJ to hear a variety of cases, article 177 references constitute a significant proportion of the ECJ's docket. [210] The doctrine of direct effect is the major reason behind this: unlike the Commission or Member States, individuals are likely to bring suit in Member State courts whenever they suffer injury, irrespective of political considerations.
The problem arises in the procedural structure of article 177. It is the Member State court, not the individual, which refers the issue of European law to the ECJ. The ECJ specifically recognized this is its 1982 CILFIT decision, pointing out that: "[a]rticle 177 does not constitute a means of redress available to the parties to a case pending before a national court or tribunal." [211] The consequence is that if a Member State court concludes that no issue of European law is at stake, it can simply refuse to make the reference. The CILFIT decision itself opened the door to this possibility. The ECJ held that a court against whose decision there is no judicial remedy must make a reference unless (1) the issue of Union law is irrelevant to the case, (2) the issue of Union law has already been decided by the ECJ, or (3) the correct application of Union law is so obvious as to leave no reasonable doubt. [212] The ECJ's reasoning in the first exception is crucial: the Court stated that a mere assertion by a party of an issue of Union law does not mean that a "question" of Union law, within the meaning of article 177, has been raised. [213] This formula, presumably intended as a sign of deference and a means to elicit cooperation from the Member State courts, grants some degree of discretion to Member State courts.
The language of Maastricht raises the ante on this discretion. The Federal Constitutional Court has, in effect, given German courts the green light to exercise this discretion on the ground that Union law is irrelevant to a decision in a particular case. Should a German court find that a legal act of the Union was taken ultra vires, a reference to the ECJ would not be warranted. Indeed, according to the Federal Constitutional Court, the German court would be constitutionally prohibited from giving that act binding effect in Germany. [214] Herein lies the problem. If a Union act is ruled ultra vires by a German court, the ECJ will never receive an article 177 reference and hence will not have the opportunity to rule for itself on the validity of the act. [215]
The American court system is not characterized by this type of "cooperative relationship" between state courts and the Supreme Court. The Supreme Court does not depend on references from state courts to create a uniform system of federal law. Unlike in Europe, the Supreme Court decides whether to hear cases based on a writ of certiorari filed by individual litigants, not state courts. Therefore, even if a state court ruled that an act of the federal government were ultra vires, an appeal could be made to the Supreme Court, and it would be able to render a decision. Although, as we saw, state courts have in the past opted to ignore Supreme Court decisions, the fact that the Supreme Court has ruled on an issue is fundamentally important. It means that states which do not challenge the Supreme Court will accept the validity of the federal act and apply it uniformly. This general acceptance of the Supreme Court's determination, in turn, builds pressure on the dissenting state court to accept the Supreme Court's jurisprudence.
This feature, which distinguishes the two systems, seems to explain, in part, the difference in tenor of the debates in Europe and the US. The Federal Constitutional Court, while clearly challenging the ECJ and its past jurisprudence, did not openly attack the ECJ. In fact, the ECJ was mentioned by name only twice in the entire decision. [216] Furthermore, despite the challenge, relations between the ECJ and the Federal Constitutional Court remain good. [217] This difference is likely to play a significant role in the future debate in Europe [218] and should continue to differentiate the European Union from the United States.
Of course, one of the principal reasons for undertaking an analysis of the Maastricht decision is to draw conclusions about its impact on the future of the European Union and European integration. All such predictions are necessarily speculative, especially since the Federal Constitutional Court did not spell out in detail the probable practical effects of its holding.
A preliminary question, of course, should be, "Will there be any impact at all?" An argument could be made that the Federal Constitutional Court was simply following and restating its jurisprudence in Solange II and Kloppenburg. After all, the Court had already pronounced that the Member States remain "masters" of the treaty. In addition, even after its dramatic Solange I declaration, the Federal Constitutional Court never declared an act of European law to be unconstitutional for violating human rights. Therefore, the argument goes, the Federal Constitutional Court, though it seemingly took bold steps, really did not challenge the European Union. Rather, what it did was to open the door, and provide a bit of guidance, to continued European integration. [219]
This author does not accept this argument, for it is overbroad and misguided in its focus on human rights. While it is true that none of the Federal Constitutional Court's steps in Maastricht came from out of the blue, there are significant differences in the language and tone of the decision, as well as the surrounding circumstances. For instance, in its prior decisions the Federal Constitutional Court praised the ECJ. In Solange II, the decisive factor was "the attitude...which the [European] Court maintains at this stage [1986] towards the Union's obligations in respect of fundamental rights..." [220] Similarly, the Kloppenburg decision lauded the ECJ's "caution" in developing its direct effect jurisprudence. [221] In Maastricht, this praise is turned on its head: the Federal Constitutional Court chastised the ECJ's, and other European organs', permissive "attitude" and lack of "caution" in interpreting the Treaty of Rome. [222]
Furthermore, Solange I, where the Federal Constitutional Court seemed ready to strike down Union legal acts, was limited to the area of human rights. In Maastricht, however, the Court's assertion of jurisdiction applies to all Union legal acts, not simply those affecting human rights.
The argument that the Court never used Solange I to strike down a Union legal act similarly misses the point. Nowhere in Solange I did the Court assail the Union for engaging in a pattern of human rights violations; rather, the Court felt that the underdeveloped state of European democracy and the lack of a European "bill of rights" prevented it from conceding jurisdiction to the ECJ. The Maastricht decision, in contrast, did cite a prior pattern of practices which, if they continue, will be considered violations. These differences, then, imply that Maastricht will have a real impact at the Union level.
The one area in which the argument does have force, however, and where there likely will be little or no impact, is human rights. The Federal Constitutional Court, as discussed above, [223] essentially reiterated its Solange II formula, with the exception of reversing its earlier position not to exercise jurisdiction over organs of the European Union. Significantly, the Court's statements were made while at the same time rejecting the admissibility of the complainants' human rights claims. Furthermore, human rights have enjoyed a continually-increasing level of protection in the European Union. According to Justice Grimm, the main concern is not with human rights: the ECJ, influenced by Solange I and German jurisprudence, has guaranteed adequate protection of human rights. There is no reason to expect a deviation from this path. [224] Given this, and the fact that even after Solange I, the Federal Constitutional Court never declared a European act unconstitutional, it seems unlikely that the Court will embark on an active course of judicial watch over the ECJ's decisions. At any rate, the "evil" alluded to by the Federal Constitutional Court was an overbroad interpretation of the Treaty of Maastricht. Since an "overbroad" interpretation of human rights would actually increase human rights protections, the specter of intervention by the Federal Constitutional Court looms quite small in the area of human rights.
Outside the realm of human rights is where the real impact of the Maastricht decision is most likely to be felt. Possible effects are divided below into three categories: short-, medium- and long-term. Furthermore, short-term effects are subdivided into two categories, based on the parties most likely to be influenced: the ECJ, on one hand, and the decision-making institutions of the European UnionÑthe Commission, Council and ParliamentÑ on the other. What surfaces is that there is likely to be some real influence, regardless of whether the Federal Constitutional Court actually exercises its proclaimed jurisdiction to rule on the constitutionality of European legal acts.
Here again the comparative approach of this article proves quite valuable, in two respects. First, the comparison and contrast with the American experience, by sharpening and refining the understanding of the issues in the European debate, permits more reasoned projections. Second, the unfolding of events in the United States, in and of itself, provides guidance in understanding how one federal system resolved the issue of court authority to decide the limits of federal power.
It is, of course, difficult to hypothesize whether the Federal Constitutional Court will actually step in and declare a Union legal act to be non-binding in Germany. How soon this question is answered depends on the willingness of individual German citizens to litigate the issue, as well as the Federal Constitutional Court's stomach for a European constitutional crisis. [225] Maastricht, by focusing on German citizens' constitutional right to vote, confers standing to challenge Union legal acts on all German citizens over the age of eighteen. Clearly, this could have an explosive effect.
One can imagine two situations where individuals could bring suit. First, in the case where Germany does apply the Union act in question, a German citizen injured by the act would challenge the act's constitutionality. Second, in the case where Germany does not apply the Union act in question, because the relevant German organ considers it to be ultra vires, a German citizen intended to benefit from the Union legal act would challenge the German organ's failure to apply the act in Germany. In either situation, the Federal Constitutional Court will be forced to reconcile Maastricht's holding, which validates the Treaty of Maastricht and the goal of European integration, and its provocative language.
If the Federal Constitutional Court does exercise its Maastricht authority, the ECJ will be forced to react. Given its strong desire for uniformity, it seems unlikely that the ECJ would tolerate nonuniformity and simply hope for the Federal Constitutional Court eventually to change its positionÑunless Federal Constitutional Court interference occurs only in rare, isolated instances. Of course, even if such interference is seldom, it could induce other Member State courts to follow suit when they feel it is in their interest. The net result could prove disastrous for the goals of the Union.
Therefore, the most likely scenario is that both courts will avoid real confrontation. [226] How? The comparison and the contrast with the American experience provides insight. In the US, although it never faltered from its position in Martin, the Supreme Court, beginning at the end of Marshall's tenure, became noticeably more tempered and hesitant in its decisions, displaying an increased willingness to uphold states' rights against federal power. [227] This is precisely the goal the Federal Constitutional Court seeks to achieve in Maastricht. According to Justice Grimm, it is his hope that the Maastricht decision will have a positive impact (by Germany's definition) on the jurisprudence of the ECJ similar to the influence Solange I had on the development of human rights protection at the European level. [228] The Court's focus on subsidiarity is crucial in this regard. Consonant with Germany's position in the treaty negotiations, the Court emphasized that subsidiarity is meant to limit further the exercise of competences at the Union level. Although it conceded that the ECJ has the authority to oversee compliance with the principle of subsidiarity and, therefore, to define its meaning, [229] the Federal Constitutional Court made perfectly clear what it means to Germany. The Court is, therefore, prodding the ECJ to interpret strictly the European Union's competences under the Treaty of Maastricht, using subsidiarity as a vehicle. In light of the "cooperative relationship" of the ECJ and the Member State courts, upon which the ECJ depends for implementation of its decisions and which is absent in the US context, a more conservative interpretation by the ECJ of the Treaty of Maastricht is more probable than the Supreme Court's self-restraint must have seemed in the mid-1820s. The net result is that the impact of Maastricht will very likely be felt by the ECJ even if the Federal Constitutional Court never strikes down a legal act of the European Union.
This impact could, however, be softened by the fact that intergovernmental conferences are to be held in the Union every five years in order to amend the Treaty of Maastricht. The intergovernmental conferences could serve to clarify treaty articles and create new competences for the Union, subject to the political controls of the amendment process. Should these conferences achieve such tangible results, the ECJ may find it less necessary than in the past to interpret the treaty expansively in implementing the goals of the Union. The Federal Constitutional Court would certainly welcome such a prospect.
Likewise, the effects of Maastricht will in all probability be felt by the decision-making organs of the European Union regardless of whether the Federal Constitutional Court exercises its Maastricht authority. The Maastricht decision could operate in a manner similar to the Luxembourg Accords in the 1970s and early 1980s: instead of bargaining under the shadow of each Member State's veto power, Member States (in the Council), the Commission and Parliament may now find themselves drafting and negotiating legislation under the shadow of Maastricht. As a consequence, they may find themselves construing the Treaty of Maastricht more strictly, as well as trying to give real meaning to the subsidiarity clause. [230] Again, this is one of the Federal Constitutional Court's overt aims.
Two factors raise the possibility that Maastricht's influence at this level could be greater than on the ECJ. First is the European institutions' position, through their control of the scope of Union legislation, on the front line of the possible conflict. Since they draft and enact Union legislation, the Commission, Council and Parliament have the ability to ensure that the ECJ is not put in the position of deciding whether to uphold legislation whose broadness could subject it to German scrutiny. This role might induce them to attempt to stave off a conflict between the ECJ and the Federal Constitutional Court. Second, the structure of the Council may serve to contain the scope of the conflict between the Federal Constitutional Court and the ECJ in a manner that was not possible in the US. Unlike in the US, Member States have a primary role in the drafting of Union legislation. The Federal Constitutional Court recognized this fact and stated that the federal government should use its position and influence in the Council "to ensure a strict interpretation of [article 3b] and thereby fulfill its constitutional duty defined by [article 23 of the Basic Law.]" [231] If the German government is able to influence the Council successfully to give teeth to the subsidiarity requirement, so as to conform with the Federal Constitutional Court's definition in Maastricht, a conflict between the courts could again be put off to the distant and theoretical future.
As a result, Maastricht could very well have as a practical consequence the slowing down of the Union harmonization program and the process of European integration. European organs will have to reflect more carefully before trying to achieve broad goals under the auspices of the four freedoms. This article makes no normative judgment as to the value of this outcome, but the Federal Constitutional Court seems to think such a course is advisable.
The medium-term implications focus primarily on whether, over the course of time, the Federal Constitutional Court will continue to claim jurisdiction or whether it eventually will acquiesce and accept the ECJ's authority to decide the limits of federal power. As long as the opinion prevails that the European Union is not intended to be, and should not become, a European state, it seems unlikely that the Court will acquiesce. As discussed above, the primary difference between the US and the European Union lies, not in the textual provisions of the Constitution and the Treaty of Maastricht, but in the vision of the union outlined in the preambles. Acquiescence in the US came as "an increasing number of people deemed [Supreme Court jurisdiction] more reasonable and practicable" than allowing states to interpret the Constitution. [232] In light of the goal of forming a single nation, it is not surprising that this viewpoint eventually prevailed. The same simply cannot be said for the European Union. Absent treaty amendment, redefining the goals of the European Union, it is difficult to envision the Federal Constitutional Court relinquishing its claim to authority. Of course, were such a major treaty amendment to be concluded, it also seems likely that the parties would simultaneously provide explicitly for jurisdiction to settle disputes over the division of competences.
The likelihood that the Federal Constitutional Court will not acquiesce to the ECJ's jurisdiction does not, however, translate into a protracted struggle. As described above, it is likely that both courts will attempt to avoid real conflict. Furthermore, the Court's willingness to assert jurisdiction may well vary with time. Perhaps the Federal Constitutional Court will in the future adopt a Solange II-type formula: as long as the ECJ generally interprets the treaty in a restrictive manner, the Court will refrain from exercising its Maastricht authority. In fact, a non-trivial period of more restrained treaty interpretation by the ECJ and other European institutions could assuage some of the Court's immediate concerns, eventually leading to more flexible boundaries between treaty interpretation and treaty amendment, depending on the issue at hand.
Finally, the Maastricht decision has long-term implications for the course and pace of further European integration, stemming directly from the Federal Constitutional Court's discussion of the Democracy Principle. As described above, [233] one consequence of the Democracy Principle is the requirement that the Bundestag retain a sufficient number of competences of political importance. The Federal Constitutional Court, in other words, seemed to posit absolute limits to European integration. In fact, it made perfectly clear that the creation of a European state would be unconstitutional. [234]
In reality, however, this limit to European integration is probably not fixed in truly absolute terms. To understand this, the Court's underlying rationale for the limit must be recalled: to ensure that the exercise of state authority is, to a sufficient degree, directly democratically legitimated. Given the current state of democracy in the European Union, the Court concluded, the only way to achieve direct democratic legitimation of state authority is through the Bundestag; since power at the European level is legitimated indirectly, there is a limit to the number of competences which can constitutionally be transferred to the Union. This suggests, then, that the number of competences which can be transferred will be a function of the level of democracy in the European Union: [235] as democracy increases, the Basic Law would authorize the transfer of a greater number of competences of political importance.
The Federal Constitutional Court gave explicit guidance to the way in which democracy should develop at the European level. It rejected the short-term, simplistic view of the European Parliament as a panacea for Europe's democratic ills. [236] True, the European Parliament is elected directly by European citizens. Even this process, though, needs strengthening in the eyes of the Federal Constitutional Court: it suggested the standardization of voting procedures as one method. [237] The Court also favors a continued strengthening of the European Parliament's role. While the steps taken in the Treaty of Maastricht are a step in the right direction, [238] they are insufficient to overcome the democracy deficit.
Elimination of the democracy deficit in Europe will require, according to the Federal Constitutional Court, the development of a true democratic infrastructure. [239] This is because the democracy deficit is structural, not institutional. [240] The idea is that, without pan-European political parties, interest groups and media, the European Parliament cannot become an institution directly legitimated by the European citizens. The Court wants the democratic exchange of ideas at the European level to resemble the situation in Germany, though it recognizes that they need not be identical. [241] Fundamental is that Union legislation be subjected to effective political control. Until this infrastructure is developed, the exercise of authority at the European level cannot emanate from the people, regardless of how much power the European Parliament is given or how transparent the decision-making process in the Council becomes. [242]
The development of a democratic infrastructure is one area where the Court's discussion of language may play a significant role. The Court, as mentioned previously, [243] discussed the need for citizens to be able to communicate, in their own language, with European officials to whose authority they are subjected. Language's importance may not, however, be limited to communication with European authorities. Although its role should not be overstated, language seems to be a major impediment to developing the type of democratic infrastructure envisioned by the Court. Although party and interest group leaders may, to some extent, already be able to communicate effectively with each other (presumably in English or French), language seems a particularly high hurdle for the development of a European media. And from the Court's point of view, communication among party and interest group elites will not be sufficient. The Court's vision of democracy, as evidenced by its statement about individual citizens communicating with European authorities, focuses on "the common citizen," not the educated elite. [244]
Of course, this desire for a democratic infrastructure before the European institutions gain competence in more fields is based on a particular vision of the proper path of integration. It assumes that social consciousness leads institutions while rejecting the opposite process. Thus, the possibility of transferring of more competences to the European Union, in order to catalyze the development of a democratic infrastructure, seems to be excluded by the Federal Constitutional Court.
What is left unanswered by the Federal Constitutional Court is exactly where the boundaries lie, and just how much they will vary with the democracy deficit. What does "substantial" power for the Bundestag mean? The Court provides no guidance to future treaty negotiations on the number of competences which may be constitutionally transferred to the European Union. This means that all future steps of European integration are likely to be challenged in the Federal Constitutional Court. [245]
These long-term implications tie in to the short- and medium-term consequences. As argued above, the Federal Constitutional Court will not acquiesce in its jurisdiction until the European Union more closely resembles a European state, rather than the current "association of states." This is, however, impossible without the development of a democratic infrastructure at the European level. Therefore, as democracy and the concomitant political control over Union legislation increase, the Federal Constitutional Court may become more apt to adopt a Solange II-type approach and effectively acquiesce to the ECJ's authority. Increased democracy might eventually lead to the view that "[s]tate sovereign interests...are more properly protected in the structure of the federal system than by judicially created limitations on federal power." [246] On a positive note, the Federal Constitutional Court seems hopeful that democracy will develop at the European level over the course of time. [247]
The purpose of this article was to inform, not to resolve. As the foregoing analysis demonstrates, the issue of ultimate court authority to determine the division of competences in a federal system is multidimensional and of profound significance. It also is not subject to facile resolution. The comparative approach of this article, which yields several points of convergence, as well as significant points of divergence, between the American and European systems, should foster a more informed and profound discussion in Europe. With this comparison as a starting point, it is this author's hope that the European Union's resolution of the conflict will be both thoughtful and enduring.
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