EUSA Ninth Biennial International Conference JUDICIALLY CRAFTED FEDERALISM: EU AND USA Mary L. Volcansek Texas Christian University The designation "United States of America" appears to have used for the first time in 1776, in the closing paragraph of the Declaration of Independence issued by the Continental Congress. Almost two centuries later, in 1948, Winston Churchill applied a similar assignation, "the United States of Europe," to capture one vision of a future face for Western Europe. The first was a declaration, and the second, a statement of inspiration. As the European Community (EC) evolved into the European Union (EU), parallels between it and the United States have been sought. In this essay, I follow in that line by considering how federalism, as a concept and as a reality, has been molded in the hands of judges. The trajectories of federalism may, however, explain more about how courts consolidate and wield their power than about center and periphery relations. Even so, the evolution of federalism, which carries different connotations in Europe and the U.S., bears the clear fingerprints of judges. Several competing explanations are typically offered to explain how or why court decisions that mold public policy are reached. The legal argument follows some variation on mechanical jurisprudence and rests on the premises that judges are objective and that the law is a closed system. Hence, Rules x Facts = Decision (Frank, 1949: 14). The attitudinal model relegates law qua law to the background and moves the judges' policy preferences or ideologies to the foreground (Segal and Spaeth, 1993). Strategic choice theory negates neither, but proposes that judges act strategically in their decisions to maximize their impact, whether on law or on policy, within their own structure and in relation to other institutions (Epstein and Knight, 1998). What likely motivates judges is some combination of all three, or as Gibson suggested, decisions of judges are "a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive as feasible to do" (Gibson, 1983: 9). Decisions are, in other words, the result of preferences, legal parameters and the political and social environment. The European Court of Justice (ECJ) and the U.S. Supreme Court are institutions composed of shifting personnel and linked to the past by a history of their own jurisprudence. I propose in this paper to trace how federalism has been crafted by judges, but also how judicial institutions evolve in relation to other institutions and political forces. The very terms used to describe a political arrangement that is neither a confederation nor a single centralized authority often lack clear and agreed upon meanings, as David O'Brien explores in detail in his chapter in this volume. The confusion that exists today was found also in 1786. Indeed, much debate in the early days of the Constitutional Convention in Philadelphia were consumed by attempts to define precisely what was meant by a "federal" system. Historical examples from Chalemagne to the Helvetian confederation were not helpful, because central governments within them were weaker than that proposed for the new United States of America. Yet, the power that would reside within the constituent parts was significantly greater than local entities could claim under any centralized arrangement. Indeed, long after the convention ended, James Madison was writing letters still attempting to explain how the proposed configuration of political power could not aptly be described as either. "Will you pardon me for pointing out an error of fact into which you have fallen, as others have done, by supposing that the term national applied to the contemplated Government," Madison began to Andrew Stevenson. "The term was used, not in contradistinction to a limited, but to a federal government . . . . And there being no technical or appropriate denomination applicable to the new and unique system, the term national was used, with a confidence that it would be not be taken in a wrong sense . . . ." (Farrand, 1966: III, 473). In another letter, written to N.P. Trist in 1831, Madison may have touched upon the most distinguishing element of the new design. He first argued that "national" was not chosen because it implied that all powers were consolidated in a central government, but added that the new arrangement should also not be confused with a confederation of the kind that preceded the constitution of 1787. The crucial distinguishing feature was that "the powers to be vested in the new Govt. were to operate as in a Natl. Govt. directly on the people and not as in the Old Confedcy. on the States only" (Farrand, 1966: III, 517). In Europe in the nineteenth century, political will was toward national systems, wherein power was consolidated centrally, and only the Swiss confederation of 1848 deviated from that tendency. Though national governments in Europe were the norm, federal ideas were prevalent in the early years of the twentieth century, particularly between the wars. Jean Monnet and Altiero Spinelli were, during the 1940s and 1950s, clearly influenced by federalist ideas, and their inclination is evident in the treaties that founded the EU (Close, 2000: 45). Both the U.S. Constitution and the early treaties on which the EC was based reflected a desire to create something not quite centralized, but more than confederated. The results are federal systems, with varying degrees of state autonomy versus centralized power in different eras. The U.S. Supreme Court and the European Court of Justice (ECJ) did not direct the course of federation alone, for the executives, legislators, administrators and other judges at both state and central levels were also active in channeling or limiting the extent of centralization. The judges, even so, set parameters and goals to be attained; they provided the frame that demarcated what could and could not be painted on the canvases by actors at the national, supranational or state level. In the European case, many of those judicial pronouncements were ultimately codified in the EU Constitutional Treaty drafted in 2003. The sagas of judicial intervention are by now well-known by students of U.S. constitutional development and those of European integration, but usually one, not both, of those stories is told. This paper links the two in order to discern both familiar patterns and divergent tendencies in the forces driving each judicial expansion and contraction. Federalism and Integration The greatest barrier to discussions of federalism is "a lack of conceptual clarity" (Wildavsky, 1967: vii). Madison was at pains to describe the original U.S. version, and European scholars and politicians have been equally challenged in their efforts to define what federal Europe is or is not. Daniel Elazar provides what is the most generic and, therefore, least controversial definition of federalism: "the mode of political organization that unites separate polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both" (1984: 2). That division of power drives negotiations and yet links the two competing entities; it is, in essence, a description of a partnership. The term "federalism" is nowhere to be found in the U.S. Constitution, but rather it is derived from a juxtaposition of the enumeration of national powers in Articles I, II and III with the reserved powers of Amendment X and moderated by the supremacy clause of Article VI. The last of those provisions makes explicit that the national constitution and laws trump any other: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of an State to the Contrary notwithstanding." In light of state rivalries and jealousies to preserve powers at the time of union, the inclusion of that statement is striking, but subsequent history has proved that it was essential to the future of the polity. The ratification process clarified that the goal of the system should be attainment of an equilibrium between the states and the national government, with some powers exercised concurrently and with a division of sovereignty between states and the national government (Federalist No. 32). A declaration parallel to the U.S. supremacy clause was included in the draft EU Constitutional Treaty. Article 10 states that "the Constitution and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States." The following section instructs all Member states to take "all appropriate measures . . . to ensure fulfillment of the obligations flowing from the constitution or resulting from the Union Institutions' acts." Some architects of the early efforts toward European federalism clearly had a model similar to that of the United States in mind, and Robert Schumann even referred to the Treaty of Paris that established the European Coal and Steel Community (ECSC) as a first step in "laying the foundation for a European federation" (Close, 2000: 107). Because of the connotation that "federalism" in Europe carries, most proponents of the ECSC and the later European Community Treaty in 1957 eschewed use of the term. They chose instead to speak of "integration," of functional integration of economic sectors. Indeed, the descriptors devised for the European experiment include "supranational," "functional integration," and "intergovernmentalism" (Rosamond, 2000). "Federalism" is too politically charge and deemed both convenient and dangerous, ideological and analytical; it has become "an elastic and controversial concept in the politics of European integration" (Rosamond, 2000: 24). Indeed, the EU Constitutional Treaty settled on a novel descriptioin, "the principle of loyal cooperation," to regulated relations between the Union and the Member States. The elasticity of the term federalism permits, however, the suggestion that a form of it has been crafted in Europe as well as in the U.S. The term that least threatened national sovereignty at the founding of the ECSC was international organization. An international organization consists only of states, and the locus of sovereignty is not in doubt. Sovereignty extended to both domestic and international independence. In this sense, international organizations are, at least according to Peter Hay, closely akin to if not identical to confederations (Hay, 1966: 21). They cannot act directly on citizens of sovereign states and can achieve compliance with their mandates only through international legal mechanisms or by force. The founders of the European Coal and Steel Community had adopted, however, as early as 1949 the nomenclature of "supranational," and that term is found in the Treaty of Paris. The key elements of a supranational institution include its independence from its constituent parts, its authority to make decisions that bind its member states and its ability to act on both states and on individuals within states (Hay, 1966: 33-34). Obviously, a supranational body is distinctive from an international organization, but is it federal? Ernst Haas answered that "federal," "central" and "supranational" could be treated as synonymous since all described "activities, organizations and loyalties transcending the existing nations, even though in a strict constitutional sense there are no clear 'federal' powers" (Haas, 1958: 9). He preferred to use "economic integration" instead to describe the first linking of six nations and the European Community, and he defined it as nothing more elaborate than forging economic links among countries; he countenanced the possibility, though, of using integration in economic sectors as a vehicle for eventual political integration. Thus, the EU and the USA each have a form of federalism, but the balance within each of these dual systems shifts and changes with new conditions. On both sides of the Atlantic, the process of integration proceeded at different rates at over time. The meaning of American federalism was not settled with constitutional ratification (O'Brien, 1997: 595), and the EU's evolution has proved to be even more fluid as each new treaty attempts to remedy perceived flaws of earlier ones and accommodate new or anticipated conditions. The recent European Constitutional Treaty attempted a clarification, by instituting, in Article 5 the principle of "loyal cooperation," which requires that the Union and the Member States "shall, in full mutual respect, assist each other in carrying out tasks which flow from the Constitution." There were, even absent the new EU Constitution's prescription, clear similarities at least in the judicial blush that has colored each version of federation. The U.S. experience spans more than two centuries and the European one is only one-quarter that, but analogous tendencies, particularly within the high courts, are discernible in the directions and degrees of federalization. Foundational Era Neither the United States Supreme Court nor the European Court of Justice received any notable litigation in their earliest days and, indeed, were regarded as somewhat peripheral to the newly formed systems of governance. Both seized opportunities, nonetheless, to assert the primacy of their respective national or supranational entities over the constituent parts and, thereby, also to consolidate their own institutional place. Chisholm v. Georgia (1793) marked the first foray of the Supreme Court into the field of federalism, and the Court first confronted the question of state sovereignty: can a citizen of one state could sue another state? The Court said "yes." This case is particularly relevant, since it also highlights the limits of judicial power and how other institutions can prevail against judicial pronouncements. The Eleventh Amendment establishing state sovereign immunity was passed in 1798 specifically to reverse the result of the Chisholm case. The Supreme Court decided a series of cases in the early nineteenth century that formed the foundation for a strong central government thereafter. Marbury v. Madison (1803), McColloch v. Maryland (1819) and Gibbons v. Ogden (1824) constituted the three legs on which the U.S. national government could rest its authority. The first firmly established the supremacy of the Supreme Court and articulated the power of judicial review; the second declared the supremacy of the national constitution and national laws, when appropriately enacted, over those of the states; and the third elaborated a comprehensive definition of commerce as "commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that commerce," and claimed, thereby, a far-reaching power for the national Congress to control economic transactions among the states and with foreign nations. This trilogy of cases declared the supremacy of the national government, so long as it acted within its proper sphere, over that of the states. The European Court of Justice chose to strike a similar centralizing theme in a quartet of cases early in its existence. The U.S. Constitution had embodied the concept that distinguished it clearly from earlier confederations by providing that the national government could act directly on citizens and not merely on states. The term for that arrangement in European parlance would be "direct effect," and its presence in the European legal order would clearly differentiate the EC from international organizations or confederations. Rejecting a literal reading of Article 12 of the 1957 Treaty of Rome, the ECJ gave an expansive interpretation in its 1963 decision in Van Gend en Loos and declared that "The Community . . . constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals." The ECJ further declared in Van Gend en Loos, that the treaties imposed obligations on individuals, but also simultaneously conferred rights upon them. This has been hailed as the first step in the Court's "constitutionalizing" the treaties. The ECJ then expanded the reach of lower order Community laws to trump those of the Member States by allowing individuals to invoke the authority of Community norms in national Courts (Costa v. E.N.E.L, 1964) and providing for direct applicability of regulations and sometimes directives (Van Duyn v. Home Office, 1974). In a parallel to McCulloch v. Maryland, the ECJ also declared the supremacy of supranational law in Costa v. E.N.E.L. The Court explained that, consistent with the spirit of the treaties, Member States had through the treaties accepted "a permanent limitation of their sovereign rights" and thereby Community laws "take precedence in, the legal order applicable in the territory of each of the Member States [and] also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions" (Costa v. E.N.E.L., 1964). The Court established, thereby, a ground for judicial review of domestic laws by national courts and in the 1977 Simmenthal case the power of judicial review and the supremacy of the treaties was also extended to national constitutions (Dehousse, 1998: 43). The U.S. case of Gibbons v. Ogden carved out what Europeans call the "positive commerce clause by declaring the authority of the central government to have sole authority to make regulations for interstate commerce. The ERTA Case (Commission v. Council, 1971) accomplished the same result in Europe be declaring that "when such common rules come into being, the Community alone" can act. If there is positive commercial integration, then there remains the question of a "negative" commerce clause or integration. In Europe, prohibitions on negatively affecting the free movement of goods derive from several treaty articles and proscribe tariffs, duties, discriminatory taxes and other barriers to intra-community/union trade. The U.S. Supreme Court and the Court of Justice each managed, in the short interval of less than two decades, to assert that the constitution or treaties were supreme over state or national laws, even state or national constitutions, and had direct effect on citizens, not just on states. A significant difference did, however, emerge. The European treaties that formed "the constitution" of the EC or EU were largely restricted the economic issues, unlike the clear political union in the U.S. Hence, the EU has been said to possess an "economic constitution" (Maduro, 1998). Mutations of Jurisdictions Joseph Weiler labeled the second era of European integration that of "mutation of jurisdiction and competencies" (1999: 39), which also aptly describes the second phase of American federal evolution. There are a number of constitutional provisions that served as vehicles for the Supreme Court, but this discussion will rely only on commerce clause interpretations. The United States entered an era near the end of the nineteenth century that was more attuned to the rights or prerogatives of states. The twentieth century witnessed a distinct mutation that altered jurisdictions and competencies. Extreme assertions of state powers were laid to rest by the Civil War of the 1860s, but the balance between the authority of the national government and that of the states still tilted toward the latter. The period from 1895 to 1937 in the United States has been labeled "dual federalism," which intends to say that the states and the national governments have distinct jurisdictions and possibly even antagonistic interests; each is viewed as supreme within its own sphere, without overlapping or cooperative competencies. The national government first tested the limit of the commerce clause during this era and discovered that the Supreme Court was inclined to read the constitution rather narrowly and, indeed, to step back from the sweeping field defined in Gibbons v. Ogden. The Sherman Anti-Trust Act, passed in 1890 under the guise of the commerce clause, was designed to break up collusive or monopolistic concentrations. The Supreme Court read the commerce clause in the E.C. Knight case (1895) as incapable of extending congressional power to regulate to manufacturing, mining, agriculture or any form of production, activities that were said to precede commerce. The Court similarly prevented Congress from using the commerce clause to establish "unreasonable" regulations (Standard Oil v. U.S., 1911 and U.S. v. American Tobacco, 1911) or to prohibit products manufactured with the use of child labor from entering interstate commerce (Hammer v. Dagenhart, 1918). While the U.S. Supreme Court was narrowly defining the national government's power to regulate commercial enterprises through the commerce clause, it was interestingly upholding use of the commerce clause to promote social policies. Central government legislation to prohibit interstate transportation of lottery tickets (Champion v. Ames, 1903), stolen automobiles (Brooks v. U.S., 1925), impure good and drugs (Hippolite Egg Co. V. U.S., 1911) and women for immoral purposes (Hoke v. U.S., 1913) were, during the same period, validated by the Supreme Court as legitimate applications of the commerce clause. The Supreme Court's treatment of national and state relations during the era of dual federalism was, in other words, not wholly unidirectional. Only when laissez faire economic theories were offended by national interference did the Court rebuke the central government. The Supreme Court, in the 1930s, tightened even more dramatically its interpretation of the reach of central government power and the commerce clause. Whole sectors of New Deal legislation were declared unconstitutional as exceeding the powers authorized by the constitution. The National Industrial Recovery Act that aimed at controlling detrimental competition was declared unconstitutional in part and in essence in Panama Refining Co. v. Ryan (1935) and Schechter Poultry Corp. v. U.S. (1935), because the elements being regulated were not, according to the Court, part of commerce. Similarly, the Agricultural Adjustment Act of 1933 was found to regulate agriculture and was, in line with the earlier E.C. Knight case, not commerce (U.S. v. Butler, 1936); the Bituminous Coal Conservation Act was invalidated in Carter v. Carter Coal Company (1936) using the same logic. The Court read the commerce clause and, hence, the extent of national power, as limited to interstate elections of transactions and placed the power to regulate so-called local activities squarely within the prerogative of the individual states. The U.S. Supreme Court's treatment of centralized authority over commerce then mutated again and redefined central and state competencies. Leaving the earlier restrictive interpretation behind, the Court broadly enunciated the extent of national government authority, under the commerce clause from 1937 until the mid-1990s. Beginning with the decision in National Labor Relations Board v. Jones & Laughlin Steel (1937), the Court for almost sixty years rarely encountered an assertion of a congressional power to regulate via the commerce clause that was not constitutional. Though the issue in Jones & Laughlin revolved around manufacturing, the Court found that Congress was within its authority to regulate it; manufacturing was no longer an antecedent to commerce, but part of it. Shortly thereafter, the Court also upheld an application of the commerce clause to establish a minimum wage (U.S. v. Darby, 1941) and explicitly over-ruled its earlier decision in Hammer v.Daggenhart. By 1942, the Court was willing to uphold the Agricultural Adjustment Act's application of agricultural quotas to products that were intended for use on the farmer's own property because "home- grown wheat in this sense competes with wheat in commerce" (Wickard v. Filburn, 1942). Congress turned its use of the commerce clause to tackle policies that were only tangentially commercial, most notably racial discrimination; the Court upheld those applications, as well. The 1964 Civil Rights Act was deemed a constitutional use of the commerce power (Heart of Atlanta Hotel v. U.S., 1964) and was held to be appropriately applied to Ollie's Barbeque that did not market to people traveling in interstate commerce, but bought 46 per cent of its meat from a local distributer who had purchased it from out of state (Katzenback v. McClung, 1964). This logic also permitted the Civil Rights Act to reach a resort in a remote location in Arkansas where some of the food sold, the records on the jukebox and the paddleboats had been purchased from out of state (Daniel v. Paul, 1969). Using such broad, judicially sanctioned definitions of interstate commerce, Congress's power to regulate recognized almost no bounds and was even extended to what state governments could pay their employees (Garcia v. San Antonio Metropolitan Transit Authority, 1985); earlier, the Court had, by a bare majority, ruled against that position (National League of Cities v. Usery, 1976), but reversed itself in Garcia. The second phase defining center-periphery relations in Europe commenced in 1973 and ran until 1992. The European Court of Justice was no longer making revolutionary changes in how member states related to the supranational structure, but rather clarifying, usually to the benefit of the higher authority, what the relationship would be. A look at how the four freedoms- -free movement of persons, good, services and capital-- were implemented in this time period illustrates the trend. Free movement of goods was central to the founding of each of the treaties, and the Court acted to limit markedly what member states might do to restrict products from other member states. In Procureur du Roi v. Benoit and Dassonville (1974) the Court issued sweeping limitations on what member states could do with regard to imports from fellow member states, by prohibiting all rules that were "capable of hindering, directly or indirectly, actually or potentially, intra-Community trade" as equivalent to explicitly banned quantitative restrictions or measures equivalent to quantitative restrictions." That position was buttressed in the 1979 Cassis de Dijon case (Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein) in which the ECJ declared not only that the the German legislation prescribing alcoholic content of spirits offered for sale was a trade barrier, but also introduced a new criterion. If a beverage could be sold in one member state, it could validly be sold in another. Thus, the doctrine of mutual recognition would, thereafter, guide intra-Community trade. Free movement of people was rendered less encumbered by national restrictions by the 1975 case of Van Duyn v. Home Office, in which the U.K. refused entrance to a Dutch national who desired to immigrate to Britain to assume employment with a sect that the British government did not approve. The Court stated that a member state government has no discretion in implementing any Community law, and established the principle of direct effect. At the same time the ECJ allowed that the British government could bar Ms. Van Duyn from entering on grounds of public policy. The stricture against discrimination against non-nationals was held the next year to extend to organizations that were not governmental (Dona v. Mantero, 1976), so long as the reasons were economic in nature. Free movement of services was bolstered by the ECJ's assertion that even rules that are not overtly discriminatory can, nonetheless, run foul of the treaty provisions guaranteeing free movement of services. In Van Binsbergen v. Bestuur Van de Bedrijfsvereniging (1975) the Court held that a member state cannot impose additional requirements, in this case the requirement of habitual residence, on a non-national when there are no other special conditions under national law. Finally, in the area of free movement of capital, the Court in Commission v. Germany (1987) invalidated a German requirement that non-German insurance companies maintain an establishment within the country as violating provisions on free movement of capital and freedom of establishment; simply having an office was sufficient. Divergent Paths Weiler sees 1992 and the implementation of the Single Europe Act as heralding the most recent phase of development in the EU, though much of the activity was focused away from the ECJ (Weiler, 1999: 63). The U.S. Supreme Court in that same decade assumed a different tact in defining national and state competencies. Both the ECJ and the U.S. Supreme Court began to focus on state sovereign immunity. Weiler chose his demarcating year because in February, 1992, the Maastrich Treaty or Treaty of European Union (TEU) was signed; its stated intent was to move to closer union. The treaty created two new "pillars"or mechanisms for implementing common policies on foreign and security and on police and judicial cooperation in criminal matters. Both new pillars were explicitly intergovernmental, as opposed to supranational, and both were explicitly placed beyond the purview of the ECJ. That was slightly modified to give the ECJ limited jurisdiction in police and criminal cooperation by the Amsterdam Treaty that went into effect in 1999. Negotiations for and the final version of the TEU were read as intentional rebukes of the Court of Justice and as a clear desire to move further integration back to an intergovernmental arrangement, without interference by the supranational or central institutions. The ECJ may have inferred those motives, but was seemingly undeterred as it approached questions of state sovereign immunity. Indeed, it made a decision in 1993 on state liability that shaved very close to what remained of national sovereignty. In Francovich and Bonifaci v. Italy (1993) the ECJ held that if a member state failed to meet its obligations under EU law and an injury was sustained, the member state could be held liable for compensation. That rule was elaborated in the 1996 joined cases of Brasserie du Pêcheur v. Germany and Regina v. Factortame. Both cases touched notable national interests; the former involved the German law on purity of beer and the second, on British fishing regulations. In the joined cases, the Court held that financial compensation could be sought from a national government if three conditions were met: the law in question intended to confer rights on individuals, the injury was serious, and a direct causal link existed between the state's action or inaction and the injury. Actual determination of damages and awards of reparations were left to national courts. These decisions removed in essence the shield sovereign immunity from national governmentswhen EU law was involved. Beginning in 1999, the U.S. Supreme Court was also hearing cases involving sovereign immunity for American states, but moving in the opposite direction from its counterpart in Europe. The first decision involving federalism in the United States was that of Chisholm v. Georgia (1793) and Amendment XI was passed to counter it, preventing national courts from entertaining law suits against a state. In other words, the amendment guaranteed that a state cannot be sued without its consent. In the 1999 case of Alden v. Maine the U.S. Supreme Court held that state employees could not, under Amendment XI, sue their employing states under the national Fair Labor Standards Act. The Court in 2000 similarly found that the U.S. Age Discrimination in Employment Act could not be applied to state governments, since Congress could not abrogate a state's sovereign immunity (Kimel v. Florida, 2000) and the next year that the Americans with Disabilities Act fell, with reference to state employees, to the same fate (Alabama v.Garrett, 2001). In short, Amendment XI was erected as a barrier to applying otherwise valid national legislation to state governments. An exception to that rule was carved out in 2003, when the Court held that a state employee could sue the state for violating the Family Leave Act, because Congress did possess the power under Amendment XIV's equal protection clause to remedy gender discrimination. The equal protection clause, in effect, trumped state sovereign immunity (Nevada Department of Human Resources v. Hibbs, 2003). The Supreme Court also began to contract national reach under the commerce clause. Garcia v. San Antonio Metropolitan Transit Authority (1985) was mentioned earlier as having extended congressional authority under the commerce clause. Though Garcia has never been explicitly over-ruled, the Court has limited the the extent of congressional application of the commerce clause in recent years. In New York v. U.S. (1992) the Low-Level Radioactive Water Policy Act of 1980 was deemed an infringement on state authority as protected by Amendment X. The Brady Handgun Violence Prevention Act required state law enforcement agencies to conduct criminal background checks on people wanting to buy guns, but the Supreme Court held, in Printz v. U.S. and Mack v. U.S. (1997), that the federal government could not "command" that state officials to enforce a national regulatory mechanism. Notably, use of state law enforcement officers to conduct background checks was only an interim measure until a national system was operational, and the advent of a national system almost coincided with Court's decision in 1997. The Violence Against Women Act of 1994 was passed by Congress under its commerce authority, but the U.S. Supreme Court held in U.S. v. Morrison; Brzonkala v. Morrison (2000) that Congress exceeded its commerce power when it provided a civil remedy for enforcement of the law. That same year, the Court upheld congressional use of the commerce power to restrict states' ability to disclose a person's personal information from drivers license applications without the person's consent (Reno v. Condon, 2000). All of these cases were decided by very narrow majorities, and a change of judicial personnel could easily alter the trajectory that they have set. Even so, the U.S. Supreme Court has within the last decade charted a course opposite to that of the ECJ, by rejecting attempts by central government authorities to infringe state sovereign immunity and to use the commerce clause too expansively. Judicial Decision Making To understand what all of this says about the nature of federalism in the U.S. and the EU and where each many be going, the nature of how and why judges made the decisions they did seems central. That can best be approached by returning to Gibson's three-pronged explanation for how judges decide cases: judicial preferences, legal policy constraints and external limitations (1983: 9). Judicial preferences usually connote ideological, political or policy predispositions that will color how a judge will view the law to be interpreted or applied. These values or goals are usually relatively consistent over time for each judge (Segal and Spaeth, 1993). During the foundational period on both sides of the Atlantic, the judges were motivated, it is generally agreed, by specific goals. Both sets of judges were federalists and, in the case of the United States, Federalist partisans. The Marshall Court (1801-1836) defined the foundational era and consciously intended to create "an effective national government endowed with vital substantive powers" (Schwartz, 1993: 45). The judges on the ECJ were driven by market-building (Weiner, 2000: 320). Moreover, during their foundational periods, both courts were largely unencumbered by prior decisions and jurisprudence that might have limited their work; both were quite clearly writing on blank slates and painting the first judicial blushes on constitutional and treaty provisions. The feasibility of judicial efforts is determined by the goals of other institutions and the extent to which they are harmonious or antagonistic. During the foundational era in the U.S., the Federalist Party held the Court as its last vestige of national authority, surrounded by hostile Jeffersonians. The Jeffersonians espoused limited government, antithetical to the nationalizing goals of the Supreme court. Their displeasure with the direction of the Court led to the impeachment of Justice Samuel Chase, which was clearly intended as a threat to the Court as a whole (Schwartz, 1993: 57-8). The ECJ found, on the other hand, itself surrounded during its foundational period with institutions sharing its goals. Both the Commission and the Council joined the Court in its drive to build a market. That permitted a concerted top-down constitutionalism (Shaw, 2000: 301). The U.S. Supreme Court and the European Court of Justice both also benefitted from a political environment that embraced a respect for the rule or law and accepted that courts were cloaked in its mantle of legitimacy (McCloskey, 1960 :11). Only rogue criticisms were lodged again the ECJ (e.g., Colin, 1966; Rasmussen, 1986). The darts flung at the U.S. Court were so clearly partisan as to be discounted. The era of mutation of competencies was, for the ECJ, an easier time. The Court was primarily putting muscle on a skeletal architecture that was already in place. European integration was, as a whole, largely stagnant during these years (Weiler, 1999: 39). The Court encountered little resistence from other European institutions and was gaining support at the national level from domestic judges (Alter, 1997). The U.S. Supreme Court was driven, from 1895 to 1936, by a belief in the gospel of Adam Smith (Schwartz, 1993: 179) and was alternately in step or out of sync with the other political institutions. That commitment eroded, as is evident in the narrow votes within the Court itself, and the Great Depression argued that it was a failed ideology. The second election of F.D. Roosevelt and the bold presidential court-packing plan made clear that the Court was an institution antagonistic to all other political sectors. The Court capitulated. Sitting Justice Robert Jackson saw the "Court as poised between two worlds," and " the older world of laissez faire was recognized everywhere outside the court as dead" (Jackson, 1941: 85). The two courts diverge, though, in the third cycle of their development of federalism. The ECJ was rebuked, if only mildly, by provisions of the Maastrich Treaty that explicitly denied the Court a hand in new initiatives. Before concluding, however, that the ECJ was clinging to an isolated position when it encroached on national sovereignty and asserted that member states could be held financially liable for violations of EU law, another feature of the Maastrich treaty should be noted. Because of repeated difficulties in gaining member state compliance, the Commission was given the option to impose penalties when states refused to comply with decisions of the ECJ. The Commission first used this option in 1997, when it sought a financial penalty against a member nation sanctioned by the ECJ (Azzi, 2000: 64). The Court was, perhaps, acting in concert with the EU executive in assuring that supranational laws were not flaunted by recalcitrant states. At the very least, the two sought the same goal. Ideology is the most obvious explanation for the U.S. Supreme Court's shift on some extensions of the commerce clause and on its position on state sovereign immunity. Chief Justice William Rehnquist has long championed states' rights, but won only once, in the 1976 National League of Cities v. Usery that was subsequently overturned. His position gained support on the bench with the arrival of the first conservative majority since 1936. That majority reflects the conservative movement in the U.S. prior to the 1992 election, and it has made a "definite changes in direction" in several lines of jurisprudence. All tilt to the right (Schwartz, 1993: 372). There has been no tension between the Court and other institutions as a result of the federalism decisions, largely because lawmakers, politicians and the public are not particularly interested in the subject. Federalism struck a chord in the U.S. during the drive for racial integration in the 1950s and 1960s, but no longer garners votes or exacts tolls. State sovereignty is still a political theme in Europe, but it is becoming progressively more muted as nations of the EU become more closely connected, particularly with the advent of the Euro in twelve nations. It may, as it has in the U.S., lose most of its resonance. It remains a concern in allocating legal competencies and assessing obligations and responsibilities and may emerge as more controversial with the addition of the new member states from central Europe and the ratification of the EU Constitutional Treaty. Courts have had and will continue to wield a heavy hand in crafting the shapes that federalism or supranationalism have assumed, and a large measure of that jurisprudence is codified in the EU Constitutional Treaty. What, though, has determined the directions of the courts? Preferences or ideologies have been determinative in three eras in the U.S., but a reaction followed the foundational period, the 1895-1936 free market bent and, most recently, the very central government friendly interpretation of the commerce clause. The reactions to the first and the last came through changes in Court personnel; the 1937 shift was in response to a number of external political pressures. None can be attributed to strictly legal concerns. On the European side of the equation, the direction of the Court has not altered significantly. Once the foundational period constitutionalized the treaties and began a centralizing course, that trajectory has been generally maintained. The intensity of the pace has varied, however, over time. Since judicial votes are not recorded on the ECJ, attributing values or ideology at the individual judge level is impossible. At the level of the Court, however, market building and integration seem to be the overlying templates across three eras. That has been possible because of the consistent complicity of the Commission, the Council and member state judges. The history of the U.S. Supreme Court and national-state relations extends over two centuries. Contractions and expansions could be anticipated as so much in the political and economic world have changed. The EU has been propelled by centripetal force, toward a more integrated, federal Europe. As economies and politics change and as the fifteen become 25, the ECJ may also find its jurisprudence will be pulled by in the opposite direction by centrifugal forces. The values of the judges, the positions of the other institutions, and the parameters of the law defined by earlier decisions will forge that future. The key to a working federal system, as James Madison explained two centuries ago, is achieving and maintaining an equilibrium. 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Garrett, 521 U.S. 356 (2001). Alden v. Maine, 515 S.Ct. 2240 (1999). Brooks v. U.S., 267 U.S. 432 (1925). Carter v. Carter Coal Company, 298 U.S. 238 (1936). Champion v. Ames, 188 U.S. 321 (1903). Chisholm v. Georgia, 2 Dall. 419 (1793). Daniel v. Paul, 395 U.S. 298 (1969). E.C. Knight v. U.S., 156 U.S. 1 (1895). Gibbons v. Ogden, 9 Wheat. 1 (1824). Hammer v. Daggenhart, 247 U.S. 251 (1918). Heart of Atlanta Hotel v. U.S., 379 U.S. 241 (1964). Hippolite Egg Co. V. U.S., 220 U.S. 45 (1911). Hoke v. U.S., 227 U.S. 308 (1913). Katzenbach v. McClung, 379 U.S. 294 (1964). Kimel v. Florida, 528 U.S. 62 (2000). McCulloch v. Maryland, 4 Wheat. 316 (1819). Marbury v. Madison, 1 Cr. 137 (1803). National Labor Relations Board v. Jones and Laughlin Steel, 301 U.S. (1937). National League of Cities v. Usery, 426 U.S. 833 (1976). Nevada department of Human Resources v. Hibbs, et al, 538 U.S. _____(2003). New York v. U.S., 505 U.S. 144 (1992). Panama Refining Company v. Ryan, 293 U.S. 388 (1935). Printz v. U.S. and Mack v. U.S., 117 S.Ct. 2365 (1997). Reno v. Condon, 528 U.S. 141 (2000). Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935). Standard Oil v. U.S., U.S. v. American Tobacco, U.S. v. Butler, 297 U.S. 1 (1936). U.S. v. Darby, 312 U.S. 100 (1941). U.S. v. Morrison; Brzonkala v. Morrison, 529 U.S. 598 (2000). Wickard v. Filburn, 317 U.S. 111 (1942). European Court of Justice Commission v. Council (ERTA), (Case 22/70) ECR 263 [1071]. Commission v. Germany (Case C-131) ECR 5427 [1990]. Brasserie v. Pecheur . V. Germany and R. v. Factortame (Cases C-46 and 48/93) ECR I-1029 [1996]. Costa v. E.N.E.L. (Case 6/64) ECR 585 [1964]. Dona v. Montero (Case 13/76) ECR 1333 [1976]. Francovich v. Italy (Case C-6 and 9/90), ECR I-5357 [1991]. Procureur du Roi v. Benoit and Dassonville, (Case 8/1974) ECR 837 [1974]. Rewe-Zentral AG v. Bundesmonopolverwaltung (Case 120/78) ECR 649 [1979]. Simmenthal SpA v. Commission, (Case 92/780) ECR 777 [1980]. Van Binsbergen v. Bestuur van de Bedrijfsvereniging voor Mettalnijverheid (Case 33/74) ECR 1299 [1974]. Van Duyn v. Home Office (Case 41/74) ECR 1337 [1975]. Van Gend en Loos v. Nederlandse Administratie der Belastingen (Case 26/62) ECR 1 [1963]. 27