Comparative Federalism: The European Union and the United States in Comparative Perspective

By Anand Menon; Martin Schain | Go to book overview

5
Eurofederalism:
What Can European
Union Learn From United States?

Theodore Lowi


5.1 The American case: One among many

In the opening sentence of his essay on transnational governance, Michael Zürn draws from Claus Offe the stern contention that [if the EU were to apply for membership in the EU, 'it would not qualify because of the inadequate democratic content of its constitution'] (Zurn 2000: 110). The same would apply to the United States. If the US Constitution (1789) and the Bill of Rights (1791) had made its principles standards of admission, only half of the original states could have met them, and no more than half of the larger number of states could have met them in 1865 or, for that matter 1905, or 1945.

The Preamble affirmed that this is a 'Constitution for the United States of America… in order to form a more perfect Union….' Article IV, Section 4 provided that 'The United States shall guarantee to every State in this union a Republican Form of Government….' And the first eight Amendments (the Bill of Rights) convey twenty-five specific rights that are expressed in universal, unexceptionable terms. Yet the Constitution was not intended to apply to the states, as the Supreme Court made explicit forty-two years later in Barron v. Baltimore, one of the most important cases in US history. Mr Barron brought suit against the City of Baltimore, whose development activities had destroyed the commercial value of Barron's wharf. He won a substantial judgment in the lower court on the allegation that Baltimore had violated his Fifth Amendment rights by 'taking' his property 'without due process of law' and 'just compensation'. Barron lost at the state level, and Chief Justice John Marshall's Supreme Court rejected his appeal, arguing that

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