E Pluribus Europa? Assessing the viability of the European Union by analogy with the early American Republic.

• Author: Glencross, Andrew

Introduction: The Neglected Study of EU Viablility

The sui generis interpretation dominant in mainstream European Union (EU) studies is often accompanied by a blithe assumption that the EU has the political wherewithal and willpower to keep overcoming its almost endemic constitutional status. Hailed as unique among international treaty organizations, it has even been described by one commentator as the embodiment of a "new European Dream" that "dares to suggest a new history, with an attention to quality of life, sustainability, and peace and harmony." (1) If deficiencies or deficits are identified in this polity, then it often assumed that there is an institutional solution: increasing the power of the European Parliament, establishing an EU senate to represent member state governments in a second parliamentary chamber, or, perhaps, having a directly elected president of the European Commission (an EU executive). (2) What is not problematized is, first, how the EU's political system has resolved previous crises and, second, what this suggests about its potential for greater centralization. Simply put, how and why is the EU viable as a form of political organization?

There is at least one very good reason why the viability of the EU should be questioned. Federalism, of which the EU is a "species" as political scientist David McKay puts it, is hot considered a "notably successful governmental form." (3) In the specific case of the EU, tensions exist between and within the member states over a multitude of European issues and policy debates: voting rights of member states, how much each member should contribute to the budget, the reliance on NATO and problems of alignment with U.S. foreign policy, and the question of Turkish accession. Lurching from one crisis to the next is a specialty of European integration. Indeed, viability is a particularly vexing question precisely because of the uncertainty over the constitutive features of this new political entity, characterized as it is by endless disputes concerning its powers, membership, legitimacy, and ability to represent citizens democratically.

This nexus of unsolved issues represents a contest over the rules of the game of European politics. This quandary of agreeing to the "rules of the game" is the problem par excellence of attempts at creating a federal-like union of states--such as the EU and the early American Republic--which start out as political projects with an uncertain end, beset by the problem of multiple identifies and interest cleavages. The claims made in this study regarding the conditions for a viable EU do not relate to what it means for the EU to be effective as a policymaker or for it to acquire the trappings of a sovereign state. Rather, viability refers to the ability either to sustain a dynamic equilibrium, which manages but does not transcend the existing contest over the rules of the game, or else it entails voluntary centralization, whereby disagreement over the rules of the game recedes as member states acquiesce to pool more powers of decision and execution at the center. Both scenarios are examples of viability for democratic unions of states because they solve the twofold dilemma of trying to avoid coercive centralization and disintegration.

To overcome the neglect in EU studies of addressing the viability problem, an indirect analogical comparison, which equates how the rules of the game were contested and managed in the antebellum American Republic and the EU, is offered here to provide insights into the viability of both systems. (4) This analysis reveals that the EU has managed the ongoing dispute over the rules of the game of European politics by preserving a dynamic equilibrium: fundamental questions about powers and policy choices have been left unresolved. Conversely, the early American Republic witnessed a process of voluntary centralization in political life that took agenda-setting and veto power away from the individual states. It was not the powers of the U.S. federal government that had changed dramatically, although its prestige and authority were greatly consolidated. What had been centralized was the political life of the Union itself through a change in democratic practices. Under the impulse of democratic reforms--in keeping with the notion of freedom enshrined at the founding of the American Republic--election campaigns, political actors, and, most importantly, policy issues were gradually centralized around the federal capital. The basis of representation both for mobilization of the electorate and political debate became the Union as a whole rather than its separate political units.

The purpose behind this centralization in the United States was to sustain a dynamic equilibrium over the fratricidal problem of slavery, a solution that ultimately failed. Such a comparison suggests that the EU, which is currently undergoing one of its periodic moments of agonistic soul-searching, should be more aware of how its viability depends on the ability to keep finding an ambiguous compromise between integration and euro-scepticism. The analogy also reveals that, as shown by the American experience, democracy--in the sense of majoritarianism--can frustrate the construction of a compromise over the rules of the game. This means that one should be cautious of claims that democratizing the EU is the panacea for its ills.

Contrasting and Explaining the Viability of the Antebellum U.S. and the EU

This study develops a multi-faceted interpretation of the legal and political orders of both the EU and the pre-Civil War American Republic in an effort to probe what makes them viable or not. In so doing, it contrasts three fundamental differences in how the rules of the game were contested in each political system: American dual federalism (with the highest functions of government) vs. European joint federalism (with the most numerous); a Constitution for popular government vs. a treaty system; and, a majoritarian party system vs. Europe's fragmented politics of integration.

American Dual Federalism (with the highest functions of government) vs. European Joint Federalism (with the most numerous)

Theorists of American federalism describe the original Republic as founded on the principle of "dual federalism." (5) The result was two separate levels of government whose conflicts took the form of legal disputes about respective powers and compliance between state and federal law. States waged a juridical and political struggle to protect the autonomy of their sphere of government. The first amendment to the Constitution after the Bill of Rights was the product of Georgia's stubbornness in refusing to accept the 1793 U.S. Supreme Court ruling (Chisolm v. Georgia) that federal courts could hear creditors' suits against a state. (6) This protest succeeded in persuading Congress to pass an amendment granting each state sovereign immunity against suits in law and equity by citizens of other states.

Another area of dispute in the early American Republic was the use of nullification to declare acts of Congress invalid if state legislatures deemed them unconstitutional. The two great nullification controversies concerned the Alien and Sedition Acts' restriction of civil liberties in 1798 and South Carolina's hostility to the imposition of tariffs on imports of manufactured goods in 1832. In the first case, Kentucky and Virginia upheld the right not to comply with these federal laws, claiming, in effect, a veto over what both states viewed as an unconstitutional extension of federal sovereignty. (7) What was at stake was less the abstract principle of who had the power to determine powers than a struggle over a particularly unwelcome extension of federal power in a certain domain for a specific purpose. Thus, the sovereignty of the states, although a commonplace ideology--"almost everyone spoke of the Union as 'our confederacy,' [and] of the Constitution as a 'compact'" (8)--was infrequently invoked and not an active component of American constitutional government.

While the U.S. Constitution was ambiguous enough about certain elements of sovereignty to allow for a compact reading of the origins of federal power, it clearly enumerated those areas of government that were the prerogative of the federal branch. These are what the British jurist and historian James Bryce called "the highest" functions of government, (9) covering international politics, trade, and defense. The states accepted this fundamental division of powers but sometimes believed it was necessary to protest when their usage infringed upon what they saw as the letter of the Constitution. Unlike the American Union, which was founded on the acceptance that the primary powers were reserved for the central government, EU countries have, with difficulty, pooled the most numerous functions of government rather than the highest. International trade, agriculture, health and safety at work, environmental protection, and consumer safety all come within the compass of European law. In these areas, the European system of law calls for uniformity to ensure the operation of a single market with common rules. (10)

National vetoes in certain crucial areas notably, tax and treaty reform--of the "first pillar" dealing with economic, environmental, and social policy where decision-making is ordinarily supra-majoritarian rather than based on unanimity, mean that the commands of the EU are less likely to shock member states into non-compliance. In the other two pillars--foreign policy and police and judicial cooperation--the EU can only act if it is granted the capacity to do so by its members. Under the American system of dual federalism, the federal government had the power to interpret the general good according to its own definition and to seek its own solutions for promoting it. The only state check on this was through representation in the Senate. Conversely, the EU is...