ISSN 1062-7421
Vol. 12 No. 2 (February 2002) pp. 121-123.
CONSTITUTING FEDERAL SOVEREIGNTY: THE EUROPEAN UNION IN COMPARATIVE CONTEXT by Leslie Friedman Goldstein.
Baltimore: Johns Hopkins University Press, 2001. 256 pp. Cloth $34.95. ISBN 0-8018-6663-4.
Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.
Leslie Goldstein's new book examines the tensions between "state" and central governmental authority
in the 17th century Dutch Republic, the modern Swiss Federation, and the formative years of the American union
(1790-1859), all in comparison with the corresponding tensions in the European Community/Union from 1958 forward.
"Quasi-federalism" for the European Community was largely the product of Community treaty interpretations
by the European Court of Justice (ECJ) beginning in the early 1960s. Her major conclusion is that "open member-state
defiance of either ECJ legitimacy or ECJ policy has been remarkably rare" in the European Community, once
it became a "quasi-federal polity in the early 1960s'."
In contrast, Goldstein found much greater state-central conflict in the formative early years of the American experiment
in federalism, despite the explicit provision of the Supremacy Clause of Article 6. The paradox she considers
is that the American Constitution provided for "clear-cut legal supremacy" of central federal authority,
yet there were several decades of active resistance to national authority by the states, while the ECJ transformed
the Treaty of Rome, creating a federal union, with relatively little resistance from member-states. Why? She
reviews a number of explanations, but her own initial one is that member-state resistance to
central authority can be minimized by the creation of institutions that "create the appearance or reality
of limiting federal action to measures that reflect the sentiment of a substantial majority-that is, a consensus,
if not unanimity of the member states, and that fosters the appearance that member-state governments are not directly
taking orders from the center." That was the case for emergence of the European Community as a quasi-federal
union, notably in the example of the apparent unanimity of decisions by the ECJ.
Her chronology of state resistance to federal authority in the United States, covers, to be sure, a wide variety
of issues, but it includes a number of references to slavery (mostly after 1837). Underlying other conflicts were
contradictions of wealth and poverty and of mercantile state economies relative to agrarian state economies (especially
slavery-based ones), which were major obstacles to consensus among the American states. And, of course, such divisions
were reflected in the distributions of political power as well as in the non-unanimous decisions of the Supreme
Court of the United States.
When Goldstein turns to the case of the 17th Century Dutch Republic she finds that while the States General acted
"on the basis of the widest feasible consensus," though not on unanimous consent, official
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resistance to central authority "by provincial governments was endemic, chronic, and virtually continual."
So she disconfirms in this instance the hypothesis that unanimity from member states will decrease resistance
to central authority. She tests several other interesting hypotheses as well, but I will leave those to your reading
of her book. For the present purposes, the most interesting confirmation is of the hypothesis that "If union-integrating
decisions are handled by 'judges,' rather than 'politicians,' there will be less member-state resistance."
The resolutions of such conflicts in the Dutch Republic were essentially political rather
than judicial.
If I have it right, the Swiss Federation presents still another pattern: resistance to central authority coupled
with a constant cantonal willingness to let conflicts over authority be decided at the federal level, but usually
by the same institutions that had been the source of the claimed central authority. However, when these institutions
(the Federal Council and the Federal Assembly) decided, they did so with the appearance of unanimity. The analysis
of these variations is complex, but informed by the depth and breadth of her inductive comparative approach.
In her ranking of conflicts, the Dutch provinces emerge as the most resistant to central authority, then the American
states, then the Swiss cantons, and finally the member-states of the European Union. You need to read the book
carefully for the full flavor of her findings, but these three hypotheses end up as the best confirmed, and in
her judgment they fit all four cases.
1. "Unions formed in the crucible of revolt against imperial power will more likely experience state resistance
to central power."
2. "Unions where obedience to the rule of law is routinized in general will experience less resistance by
member state officials to the rule of federation-level authorities."
3. '[A] union precipitated directly by a war among its member states will be less likely to undergo overt member-state
rejection of its authority.
For many of us (and no doubt for even more of our students) federalism is not a particularly energizing subject
for study. That may be particular true of those of us who grew up, as I did, hearing the claims of states' rights
as code words for racism in the American South. The revival of states' rights by the U. S. Supreme Court in the
past decade continues to send mixed messages to liberals and conservatives. I continue to believe that it is not
instructive prospectively to make decisions about divisions of power (or devolutions of power) apart from the probable
policy consequences of those decisions. If that is true prospectively, analyzing past decisions is quite another
matter, for the past may indeed inform the present. Of the three propositions quoted above, the only one that
reasonably can be
manipulated prospectively is the second. The routinization of the rule of law has many potential consequences,
among them what amounts to peaceful coexistence (conflict resolution) among policy rivals. Is it true that vesting
final "rule of law authority" can be only be imagined for a central institution, such as a federal supreme
court? It seems so, for otherwise there would be no real federation (note the U. S. experience under the Articles
of Confederation). Thus the second proposition seems support the concentration of powers at the federal level.
That has been the case for most of our history. But we have to account for the exercise of such
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power by a central authority, such as the Supreme Court of the United States, for the purposes of devolution to
lower levels. And, that is underway. For what purposes and to what ends remains to be seen.
This is a very impressive and thought-provoking book that contributes to the research stream represented by books
on the impact of European Courts on European "constitutional" politics, such as Volcansek (1997), Alec
Stone Sweet (2000) and Sweet, Sandholtz and Fligstein (2001). Those of us who have built courses around Leslie
Goldstein's casebooks on the rights of women already know her excellent scholarship. Those who teach courses that
include federalism as a key topic should have their students read this book. Bright and industrious undergraduates
will be able to cope with it. It is must reading for scholars of European "constitutional" politics.
REFERENCES:
Stone Sweet, Alec. 2000. GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE. Oxford: Oxford University Press.
Stone Sweet, Alec, Wayne Sandholts and Neil Fligstein (eds.). 2001. THE INSTITUTINALIZATION OF EUROPE. Oxford:
Oxford University Press.
Volcansek, Mary (Ed.). 1997. LAW ABOVE NATIONS: SUPRANATIONAL COURTS AND THE LEGALIZATION OF POLITICS. Gainesville:
University Press of Florida.
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Copyright 2002 by the author, Donald W. Jackson.