Promoting federation : the role of a constitutional court in federalist states

• Main Author: Delaney, Erin Fielding
• Published: University of Cambridge 2003
• Subjects: 320
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.598488

Comparative studies of the European Union have been hampered by the fact that many political scientists treat the EU as a ‘sui generis’ entity, with no historical precedent or comparative example. Those who view the EU as something closer to a state than to an international organisation have struggled to find a workable definition encompassing the many, seemingly contradictory, aspects of the European system. This dissertation therefore begins by asserting the need for a new definition of the European Union, one that allows for comparison within a theoretical framework to advance our understanding of the EU and of its states in general. It then proposes a new definition, that of the ‘federalist state’ - a polity with some, but not all, of the hallmarks of a federation. A federalist state is not a federation, and it may not evolve into one; rather, it is a polity with a fundamental divide in its self-understanding. A broad consensus in the population does not exist on either the existence or the meaning of the critical elements of federation: the supremacy of the constitution; the role of the court; the relationship between the individual to the federal government; the right or, lack thereof, to secede; and even the meaning of federalism itself. The first part of this dissertation, Chapters I to III, will analyse these criteria for federation and demonstrate that the <i>ante-bellum </i>United States and the European Union can be classified as federalist states. The second part of the dissertation uses this theoretical framework to provide a foundation for a comparative analysis of the role of the constitutional court in each polity. In Chapters IV and V, the roles of the Supreme Court in the United States and the European Court of Justice in the European Union will be assessed and shown to be similar in effect: the public actions of the judges and their decisions in key constitutional cases demonstrate a consistent support for the elements of federation that are unresolved within the federalist state. Finally, the conclusion assesses some potential explanations for why the courts functioned as promoters of federation. In addition, it assesses the value of this theoretical framework for future comparative studies.