EUROPE'S CONSTITUTIONAL CONVENTION:
Will The European Union Embrace Federalism?

Today, February 28, delegates from the Member States of the European Union are meeting to begin the "Convention on the Future of Europe." Many Europeans hope that the convention will produce a constitution for the EU, which has previously been organized by a series of treaties entered into by the Member States.

Former French President Valery Giscard d'Estaing, who has been selected to head the convention, has compared the proceedings to "the famous convention of Philadelphia of 1787." And the European Council's Laeken Declaration, which called the convention last December, announced (perhaps over-optimistically) that "the unification of Europe is near."

There is, of course, no guarantee that the European convention will produce anything other than another modest round of treaty revisions. Nonetheless, the European deliberations deserve considerably more attention than they seem to be getting in American legal and political circles. For one thing, they highlight the possibility of - and the real need for - a constructive dialogue on federalism between Europeans and Americans.

Should Europe Fear Federalism?

James Madison prepared for Philadelphia by boning up on the experience of federations and confederations throughout history. Europeans would do well to follow that example by considering other modern federal democracies, not only in America but in Canada, Australia, India, and elsewhere.

Europeans have traditionally been leery of what some call "the F word." Unlike Twentieth Century Americans, for whom "federalism" connotes limiting the power of the central government in favor of the States, Twentieth Century Europeans see a "federal" system as requiring a dramatic shift of power to the EU institutions - the creation of a European "super state." Recently, some Europeans have come close to advocating precisely such a shift. In May 2000, for example, German Foreign Minister Joschka Fischer gave a speech calling for a "European Federation."

Yet "federalism" need not be construed to denote a particular division of power between the center and periphery. Rather, it can simply be taken to refer to the general problem of balance between those two levels of government. In this broader sense, "federalism" is plainly at the heart of the Convention's agenda.

One Lesson Of American Federalism: Avoid Defining Authority By Subject

It is always difficult to compare particular institutional arrangements across differing cultural and political contexts. But American federalism may suggest a few general lessons about what role law can play in preserving a federal balance. The point is not that America has all the answers; indeed, the Europeans may find the most productive lessons in our mistakes.

Many Europeans, for example, continue to call for allocating authority between the Member States and the Union by defining for each different "competences" - that is, Member State or EU authority over particular subject matters. The American experience suggests, however, that any attempt to define separate spheres of authority for the center and the periphery is probably doomed to failure.

For 150 years, the Supreme Court tried to enforce a regime of "dual federalism" under which the Federal Government's power over interstate commerce was narrowly construed and the States could claim exclusive authority over spheres of "agriculture" or "education," "family law," and the like. These separate spheres of federal and state authority always turned out to overlap, however. Agricultural and educational decisions affect the national economy; child support awards must be enforced against parents living in other states. Over time, the Supreme Court has been forced to allow substantial federal regulation in virtually every traditional sphere of state activity, notwithstanding recent judicial attempts to limit federal power around the edges.

How Separation of Powers Preserves Federalism Better than "Competences" Can

Rather than rely on "parchment barriers" to restrain government power, our Founders emphasized structuring the government to check itself. This experience suggests that, in designing a constitution, issues of separation of powers and democratic accountability are almost always intimately related to federalism. Separation of powers may make it difficult for the federal government to act, thereby leaving more room for action by the States. On the other hand, increasing the efficiency of the federal lawmaking process - for example by delegating lawmaking authority to administrative agencies - may in turn lead to a proliferation of federal norms that ultimately crowd out much state law.

This dynamic suggests that European attempts to streamline the EU lawmaking process may ultimately undermine the position of the Member States. Although Europeans typically respect technocratic values of efficiency and expertise, efficiency may not always be good for preserving a federal balance.

Federalism as a Competition For Citizens' Loyalty

On the accountability side, we might chalk much of the expansion of Federal authority in the last century up to the fact that, in crises like the Great Depression, the federal government proved more responsive than the States to the basic needs of the American people. As Madison recognized, a federal balance is ultimately a contest for loyalty between governments at the center and the periphery. Accountability and responsiveness are important ingredients of that contest.

Currently, the EU suffers from a "democratic deficit" - that is, the widespread perception that the EU institutions are made up of unaccountable, unresponsive technocrats in Brussels. Addressing that deficit obviously serves important democratic values. But rendering the EU institutions themselves more democratic may have the unintended consequence of enhancing the Union's ability to compete with the Member States for the loyalty of their common constituents. Conversely, if the democratic deficit persists, the EU will have trouble building real power, regardless of the paper powers with which the Convention may endow it.

What Americans Can Learn From European Federalism

Comparative law is a two-way street, and we also have much to learn from the European deliberations about federalism. American debates are dominated by the historic association of state autonomy with slavery and segregation. Those issues have clearly been federalized - and rightly so - by the Reconstruction Amendments and decisions like Brown v. Board of Education. Yet it is difficult to get beyond that history and have a rational discussion about the contemporary allocation of power over other issues. Distrust of the States remains as part of the Civil War's and Civil Right's Movement's legacies.

Looking to Europe, however, offers us an opportunity to discuss issues of federalism without that historical baggage. It helps us remember how contingent is the relationship between federalism and particularly policy outcomes.

On the substantive side, we could learn much from the EU's political principle of "subsidiarity" - the notion that policies should be pursued by the EU institutions only if that government can achieve them better than the Member States. This principle may have once played a role in our own politics in ages where federal action was still viewed as exceptional or unusual. But today even Republicans - who profess to be the party of "states' rights" - propose to regulate medical marijuana, cloning, or physician-assisted suicide at the federal level. The case against regulating these issues in the states, unfortunately, seems to rest on nothing more than distaste for the policy choices made by particular states.

American lawyers have been preoccupied for almost a decade now with the Supreme Court's efforts to reinvigorate judicial review of federalism issues in cases like Lopez, Printz, and Garrett. The most exciting current development in federalism, however, is not this string of decisions, which after all roll back only slightly a long history of expansion of federal power. Rather, it is Europe's potential creation of the West's largest federal democracy.

Our experience with federalism may be helpful to the Europeans, and their deliberations on the topic have much to teach us. It is time Americans started paying attention.