Restraining Power from Below: The European's Constitution Text and the Effectiveness of Protection of Member State Power within the EU Framework

Multi-level constitutional systems institutionalize power-splitting arrangements among governments sharing power over territory and people. These arrangements produce a diffusion of sovereign authority among multiple partial sovereigns who together constitute the whole of a self-contained political community. Critical to the success of such arrangements is the effectiveness of protections afforded the residuary power holders. In the United States, structural protections of the residuary powers of the states have been characterized as a mere truism: not a grant of positive power to the States, but merely a provision of descriptive and reassuring value. Between 1789 and the present, application of the principle by the federal courts has produced both a flexible and efficient system of national governance in which the political accountability of federally elected officials serves as the primary source of the protection of federalism and a significant diminution of those residual powers in favor of the general government. Germany has allocated power a little differently to the federal government, providing a limited power for federal legislation to be vetoed by the Lander represented in the Bundesrat, and a monopoly in the Lander over the implementation of federal law. Since the adoption of the Grundgesetz the resulting system of cooperative federalism has preserved much Lander power over implementation but little power over legislation. The resulting system imposes obligations to consult among all levels of government if legislation is to be passed and implemented. In each case, constitutional text has served only as the starting point for the development of very different articulations of judicial visions of the constitutional state. The European Union, as a supra-national organization with multi-level constitutional characteristics, has avoided a strong adherence to either the German or American models of federalism. All the same, the Institutions of the E.U., the methods for enacting regulations, and emerging principles of legislative restraint (among the most well known of which is the principle of subsidiarity), have produced a system with substantial formal respect for Member State authority, a certain amount of inefficiency, and a historic tendency to encourage the migration of state power to the federal or general government. This has been accomplished through the articulation by the courts of a vision of the European Union that was not necessarily apparent from a reading of the Treaties. The proposed E.U. Constitution attempts to build a more formalized and institutionalized federalism on the foundation of the current system of European power sharing, but with more direct protections for Member State power. It is not clear that any amount of writing in a Constitutional document memorializing vertical power sharing arrangements can fully protect subordinate units of government against a shifting of power towards the center. This paper evaluates the efficacy of this proposed multi-constitutional arrangement to define and protect against erosion of the residual powers of the Member States. Using the experiences of the American and German federations, as well as that of the pre-Constitution E.U. as analytical templates, the paper suggests that no amount of textual protection of residuary authority, even in systems in which substantial power is retained by the constituent parts of the federation, can guarantee against the shifting of power from Member State to central government. The European Court of Justice, bounded by constitutional traditions that favor a German approach to constitutional interpretation, may instead adopt the nationalizing approach of the American courts in its interpretation of ambiguities and lacunae in the draft European Constitution's federalism provisions.