From Constitutional to Treaty Federalism: A Comparative Perspective

Abstract

Federalism in the European Union differs significantly from the American model. First, instead of relying on fixed constitutional rights, the EU remains committed to a treaty-based process of flexible accommodation. Second, the federal system of constitutional power division has been replaced by the subsidiarity principle. The scope and dimension of Community action are tied to negotiated criteria of necessity and efficiency. Third, European federalism has not adopted the American senate model. Memberstate participation in the decision-making process is based on the German model of weighted council representation. Regions and civic organizations have gained an additional consultative voice. As a novel type of federal polity, the EU may gain model character for a globalizing world of nation-states whose interests appear loosely interconnected by federal arrangements rather than firmly nested in a federal state. In one of his last contributions to the study of federalism, at a Harvard conference on federalism in the United States of America and the European Union, Daniel J. Elazar surmised that the European Union might as much provide the model of federalism for the twenty-first century as the United States had for the twentieth century.' The purpose of this contribution is to engage in a rather preliminary exercise of sorting out what this might entail for the future of federalism. One of the exemplary strengths of Elazar's scholarship was his ability to put forward his findings and thoughts in simple analytical terms, avoiding overly complicated jargon. Although a ravenous reader who was always up to date on the state of the art and beyond, Elazar never followed the neoscholasticist trend of burying his arguments in avalanches of bibliographic references. Despite his worldwide presence, he never belonged to the international political science jet set. He also avoided jumping on to every new theoretical trend and fashion. Never straying far from his deep commitment to the Judaeo-Protestant covenant tradition, he was nevertheless open and generous toward differing views. All this did not always endear him to the established academic community. At Harvard, his prophetic comments earned him some raised eyebrows. The American Political Science Association never honored him as