“Preventing an Appeal to the Sword:” The Role of the Judiciary in American Federalism and European Integration
The article explores and compares the role of the judiciary in US constitutionalism and European integration. The development of these two legal orders has raised very similar constitutional problems and the purpose of the inquiry is to highlight the similar legal solutions devised by the US Supreme Court and the European Court of Justice. Four aspects have been singled out to show the importance of constitutional adjudication by courts in both experiences: the foundations of judicial review, supremacy of federal/Community law over state legislation, the protection of fundamental rights, and the dialogue among constitutional courts.
The European Court and national courts -- doctrine and jurisprudence : legal change in its social context
Part 1 National reports: report on Belgium, Herve Bribosa report on France, Jens Plotner report on Germany, Juliane Kokott the Italian Constitutional Court and the relationship between the Italian legal system and the European Union, Marta Cartabia report on Italy, P. Ruggeri Laderchi report on the Netherlands, Monica Claes and Bruno de Witte report on the United Kingdom, P.P. Craig. Part 2 Comparative analyses: explaining national court acceptance of European Court jurisprudence - a critical evaluation of theories of legal integration, Karen Alter the role of national courts in the process of European integration - accounting for judicial preferences and constraints, Walter Mattli and Anne-Marie Slaughter sovereignty and European integration - the weight of legal tradition, Bruno de Witte constitutional dialogues in the European Community, Alec Stone Sweet constitutional or international? the foundations of the community legal order and the question of judicial kompetenz-kompetenz, J.J.H. Weiler and Ulrich R. Haltern epilogue - the European Courts of Justice - beyond "beyond doctrine" or the legitimacy crisis of European constitutionalism, J.H.H. Weiler.
INTERPRETATION AND AUTHORITY IN STATE CONSTITUTIONALISM
In I977, Justice Brennan delivered his now famous plea for a renaissance in state constitutionalism.1 As much as any judicial opinion he ever wrote, this plea has influenced the development of American constitutionalism. Since I977, there has been an outpouring of scholarly work as well as a renewed interest by bench and bar in the possibilities of state constitutionalism. Conferences are held and papers written in order to encourage its development.2 This essay is in the same practical style, advocating a vigorous state constitutionalism. However, I abandon the central premise of most previous works, namely, that the interpretation of a state constitution must rely on unique state sources of law. Those sources include the text of the state constitution, the history of its adoption and application, and the unique, historically identifiable qualities of the state community. State constitutional law, it is assumed, can diverge from federal law only if the differences can be traced to one of these sources. This premise rests on an idea of state sovereignty that at best is a romantic longing for vibrant local communities and at worst misunderstands modern American constitutionalism. My aim is to show that state constitutionalism can survive the abandonment of this premise and that, in fact, the doctrine of unique state sources threatens to undermine the renewed interest in and growth of state constitutional aw. My argument takes the following form. In the first two sections, I present a very brief overview of the contemporary state of federalism and the puzzling appearance of Justice Brennan as an advocate of state constitutionalism. I then elaborate a view of the interpretive character of constitutionalism. In so doing, I distinguish interpretation from truth: constitutionalism is not a single set of truths, but an