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Larry Catá Backer
Visiting Professor of Law
Hastings College of the Law
San
Francisco, California
Professor of Law
Co-Dir., Comp. & Int'l Law Center
University of Tulsa College of Law
Tulsa, Oklahoma
Abstract: The process of European Union constitutionalism is a function of the dynamic interaction between three "communities" of forces: the centralizing impulses of harmonization, the deferring to nation-state sovereignty subsumed under the rubric subsidiarty, and a solicitude for the cultural peculiarities of the "peoples" of Europe. This paper develops a theory to explain how each of these three forces has shaped European federalism and to understand how each is currently expressed within the European Union. Today, European federalism is based on the ceding of fundamental norm-making power to Community Institutions. The sovereignty of Member-States is increasingly constrained by these norms, whether or not national actions directly concern provisions of the Treaty. Solicitude for cultural difference is tightly controlled for the moment, and is limited to the touristic aspects of cultural expression. The current configuration is not locked into the fabric of the structure of the Community. Indeed, the Community system is structured to contain, not eliminate, the conflict between the crisscrossing imperatives of these three forces. Containment permits changes to the governing structure of the union based on the relative value of each of these forces. The paper concludes with an exploration of the future of European federalism within the context of this conflict.