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US Supreme Court’s Lesson

Benjamin Preisler, 20.12.2012
The unification of the New World was in reality a drawn-out process fought in the courts and the halls of Congress as much as at Gettysburg

The unification of the New World was in reality a drawn-out process fought in the courts and the halls of Congress as much as at Gettysburg

Most famously with its 1954 Brown v Board of Education decision, the United States’ Supreme Court was a key player in the federal government’s drive to abolish racial segregation against the strong resistance of numerous Southern states. For this it mainly relied on the US Constitution’s so-called Interstate Commerce Clause – Congress shall have power to regulate commerce among the several States – to render applicable a whole slew of legislation barely on the surface linked to the clause’s original intention. This reliance on the court to reinforce federal supremacy provokes interesting parallels with the history of the European Union. It also offers us a glimpse into a possible future of European integration.

While few call into doubt the unity of the United States today, the unification of the New World was in reality a drawn-out process fought in the courts and the halls of Congress as much as at Gettysburg. This process – just like within the EU until this very day – temporarily led to the emergence of a parallel or pluralist system in the antebellum US where constitutional state courts refuted the Supreme Court’s claim of supremacy of federal law without necessarily challenging it heads-on either.

The European Court of Justice (ECJ) today holds a preeminent place within the EU’s politico-legal system. It rules over the validity of EU legislation, may render obsolete even national constitutional law, and has through its body of case law reinforced not just its own prerogatives but solidified decision-making powers on the EU level also. Interestingly, both the Supreme Court and the ECJ self-established themselves as the pertinent actors they have become, seizing upon often times loosely worded provisions to garner broad judicial decision-making authority.

The equivalent of the US’s interstate commerce clause in the EU has been the treaty objective to establish an internal market. Especially the four freedoms accompanying it – free movement of goods, persons, services, and capital – allowed the ECJ to introduce broad restraints on national sovereignty in, e.g., perceived discriminatory business practices brushing away cherished traditions such as the German beer purity laws. The Court in this fashion set a deregulatory baseline against which a whole number of national laws all of sudden had to be justified, turning the originally policy-driven process of integration on its head.

Just like in the early years of the United States where the majority of federal rights were of economic nature, a European Union citizen today is defined mostly in his role as an economic agent. Not only did the court ironically rely on these both in its establishment and abolishment of the segregationist separate but equal mantra, it was the very concentration on them that allowed the Supreme Court to advance its agenda from the early 18th century on.

History may yet repeat itself in the European Union in this regard. Member states there are of course reluctant to give up on sovereign prerogatives also. Yet, the German government’s failed attempt in the Fiscal Pact negotiations to empower the ECJ to receive veto power over national budgets in violation of an European-level debt brake point the way towards a European Union where the ECJ is relied upon to drive forward deeper integration in an expanding array of policy fields. The idea of course would be that the parallels between the US and the EU stop here, as the former had to go through a bloody civil war in order to settle the question of the predominance of the federal over the state level.

*Benjamin Preisler has a MA in political science & economics and most recently worked in the risk analysis industry