Federalism as Constitutional Pluralism: ‘Letter from America’

Abstract

What can a “Letter from America” offer to European constitutionalism? Europe’s constitutional tradition continues to insist on the idea of undivided sovereignty. This poses – unsolvable – problems for an analysis of the political and constitutional dualism that characterizes the European Union. For a tradition that relies on the – unitary – concept of sovereignty, constitutional pluralism must be seen as a “novelty” or “aberration”. The absence of an “Archimedean point” from which all legal authority can be explain is here – wrongly – hailed as a sui generis quality of the European Union. Why not see the normative ambivalence surrounding the supremacy principle in the European Union as part and parcel of Europe’s federal nature? This (working) paper looks at four constitutional conflicts in the history of the United States – two before and two after the Civil War. Each historical episode invoked the “ultimate arbiter” question. While the crisis over the Alien and Sedition Acts elaborated on the theory that the State governments could “interpose”, the “Principles of ‘98” were in conformity with the idea of divided sovereignty. Three decades later, the tariff crisis generated the idea of State sovereignty. As sovereigns, each State was said to be entitled to ultimately interpret the Constitution and to “nullify” federal laws that were viewed as unconstitutional. Conflict over the – sublimated – question of sovereignty would lead to the Civil War. However, as the second part of this contribution shows, American postbellum constitutionalism would not lead to the (European) idea of national sovereignty. American constitutionalism continues to subscribe to the idea of divided sovereignty, and thus: constitutional pluralism.