The Thin Line between International Law and Federalism: A Comparative Legal and Historical Perspective on US Federalism and European Union Law

• Author: James D. Wilets
• Position: Professor of Law, Nova Southeastern University, Shepard Broad Law Center and Chair, Inter-American Center for Human Rights. M.A., Yale University, 1994; J.D., Columbia University School of Law, 1987; B.A., University of Washington, 1982. In this article, apart from a few adaptations made by the Journal, the editing style conventionally used in the
• Pages: 35-47

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@1. Introduction

1. This article will explore the historical and legal parallels between the US system of federalism and European law, and the similar operation of the two systems in the domestic legal arena. This article will illustrate that the United States system of federalism, particularly in its early years, bore much more resemblance to contemporary international law than commonly supposed. Conversely, this article will also argue the correlative: that European law is much more characteristic of US federal law in its application in the domestic sphere than international law, with the exception of EU member states' jurisdiction over their own security and military matters.

This article will first address the creation of the United States, with a focus on how its creation bears much more resemblance to international than commonly supposed. This article will then demonstrate how European Union law bears much more resemblance to United States federalism than commonly supposed. Understanding the historical and developmental parallels between the two legal systems will help legal scholars on both sides of the Atlantic from

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viewing either US federalism or EU law solely through the lens of either municipal or international law.

@2. The similarities between early United States federalism and international law

2. It is helpful to examine the creation of the United States to fully appreciate the evolution of US federalism from a form of government that, in contemporary terminology, would be characterized as a kind of confederative international law, to a form of government that is today unquestionably "domestic" federal law. Some scholars have gone so far as to posit that the U.S. Constitution itself could, in substantive terms, be most accurately characterized as an international treaty among sovereign entities rather than an organic creation of a unitary sovereign entity with legal legitimacy emanating from the American people themselves.¹Some commentators have argued that since the United States was not a single country at the time of the creation of the United States, politically, economically, or even conceptually, there could not be a single "American people" from which an organic Constitution could emanate. Some commentators have similarly argued that the first centuries of American federalism could be roughly characterized as a type of international law.² This position is not as radical as it may first appear.

In order to explore this development, it is helpful to begin with the independence of the American colonies from Britain in 1776. As we shall see, the states of the United States did not transform themselves from a collection of British colonies to a single country upon their declaration of independence from Britain in 1776, but rather formed a very loose confederation of independent countries under a document termed the "Articles of Confederation."

@3. The Articles of Confederation

3. The Articles of Confederation ("Articles") were created upon the independence of the American colonies to provide a coordinated means of conducting the War of Independence against Great Britain, and to provide a united front to a frequently hostile world. The Second Continental Congress, representing the newly independent colonies,³ began drafting the Articles in June, 1776 and sent the Articles to the states for ratificiation in November, 1777. The completion of the ratification process did not occur until March, 1781, but the final draft of the Articles served as the de facto system of government until the Articles' final ratification. The Articles remained in effect until 1789, the year of their replacement by the U.S. Constitution.

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The Articles were an accurate representation of the self-perception of the newly independent states that they were sovereign, independent countries.⁴

Article 2 of the Articles provided that "Each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated."

The Articles created a "Congress of the Confederation," whose formal name was the "United States in Congress Assembled." Each state was entitled to one vote in the Congress regardless of size, consistent with the present day United States Senate, and each state maintained its own currency,⁵ customs controls and port fees. They imposed tariffs on goods from other states and Congress had no ability to regulate trade, although freedom of movement of people was guaranteed.

Consistent with a collection of sovereign states, the Congress had no power to enforce its laws and had no power to impose taxes, but simply had the right to request contributions to its budget from the several states. The Congress, however, even lacked the means to compel such contributions by the states, and the requested contributions were frequently not forthcoming.

As with any collection of independent countries, each state had an equal vote in Congress, as does the current United States Senate and the European Union Commission. The Articles were simply a pragmatic effort to create greater unity among those independent states in the face of the threat from Britain during an ongoing War of Independence and in foreign policy in general. In no way did the countries under the Articles view themselves as anything other than a loose confederation of fully sovereign countries with full control over their economic, legal and domestic political affairs, except to the extent such matters might be delegated on a limited basis to other entities, much as contemporary countries delegate certain discrete economic, political and security matters to transnational or international entities.

The practical problems inherent in the Articles, particularly the inability to compel contributions to the central treasury, and economic conflicts among the states, led many of America's leaders to contemplate a substantial revision of the Articles, which ultimately led to the creation of an entirely new document: the United States Constitution.

@4. The US Constitution

4. The process of political integration of the states of the United States following the ratification of the United States Constitution has been much misun-

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derstood. The process of integration in the United States characteristic of what we would call contemporary "federalism" took centuries to develop, and it can be argued that the United States, in many respects, did not even achieve the level of political and economic integration achieved by the present-day European Union until the very recent past.

In order to understand the early political reality of the United States, it is helpful to start with the U.S. Constitution itself. There has been a great deal of misunderstanding about the process by which the creation of the US Constitution took place, and the intent of the creators of that instrument, to the extent any kinds of generalizations can be derived from the collective intent of the Founders. This misunderstanding has been compounded by the subsequent history of the United States which has transformed the Constitution into a very different document than it was at its creation. This history has colored the view of early federalism by viewing it through the lens of contemporary understandings of modern federalism, and making the erroneous assumption that the early American federalism was essentially the same political system as its much later evolutionary product.

Clearly, the differences between the US Constitution and the Articles of Confederation were substantial. However, those differences obscure some very real similarities between the Articles and the Constittuion, particularly with respect to the sovereign nature of the constituent states of the new republic.

First, at the danger of echoing the rhetoric of those who promoted slavery, segregation and other evils under the banner of "states rights," it is nevertheless important to recognize, as a historical and legal matter, that the structure of the Constitution reflected the widespread view at the time of the Constitution's creation of the US as a collection of sovereign entities who delegated an admittedly broad, but limited array of powers to the central government.⁶ Some of those attributes of sovereignty include:

(1) A federal political structure characteristic of a union of sovereign states. As noted above, the Articles gave each state an equal voice in the Congress of the Confederation, consistent with a confederation of independent states. To some extent this structure continued under the new Constitution in a Senate consisting of two senators from each state regardless of population. This structure is all the more striking when one compares the political structure created by the Constitution to that the European Union. The European Union, like the United States, faced a conflict between more and less populated states. The compromise in both entities was to create a body reflecting the equal sovereignty of each entity: the Senate in the United States and the Council of Ministers in the European Union; and a body reflecting the respective population of each entity: the European Parliament in the European Union and the House of Representatives in the United States. However, unlike the United States Senate, each country's

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vote in the Council of Ministers is weighted by population, however inaccurately. In this sense, the Senate continues to be a much less democratic institution, and more reflective of a body representing equal sovereigns. Although this singular aspect of the United States' political structure does not render the United States federal structure more international than the European Union, it does reflect that the tensions between sovereignty and union in the creation of the Constitution were very similar to those present during the contemporary discussions of the European Union's political...