Comparative Constitutional Federalism: Europe and America

By Mark Tushnet | Go to book overview

oppression. I am not entirely convinced that we can develop a normatively acceptable account of false consciousness that would justify the imposition of outside norms on such communities. 12 It may be, though, that the possibility of mobility would provide enough constraint on the development of these problematic communities that we would not find ourselves troubled by the few that might sustain themselves.


CONCLUSION

It should be obvious that I have been discussing a rather utopian vision of the way in which constitutional federalism might address the normative problems raised by Minow in light of the suggestion, developed from Majone's analysis, that integration is only an intermediate stage in long-term historical processes. Perhaps the utopianism may be justified by the suggestion made in the first section of this chapter, that the intuition about "mature" federalism is in an important sense just as utopian, yet it provided the reason for addressing comparative constitutional federalism in the first place. I believe that we have shown that the enterprise of comparative constitutional federalism, though it may be motivated by certain utopian intuitions or yearnings, leads to the open confrontation of enduring questions of institutional design and normative evaluation.


NOTES
1.
It may be suggestive in this connection that apparently the first real consequence of the rather modest degree of political integration of the member states of the European Community has been the emergence of a transnational "Green" not-quite-party. (The relationships among the various national Socialist parties of course predate the Community.)
2.
In the legal literature the best discussion of the prescriptive failure is David Trubek and Marc Galanter, "Scholars in Self-Estrangement," 1974 Wisconsin Law Review1062.
3.
Perhaps, too, just before the threshold is reached, political leadership can utilize constitution-framing as a mechanism for pushing the group across the threshold.
4.
The importance of the example was suggested to me by Thierry Bourgoignie and David Trubek, Consumer Law, Common Markets and Federalism in Europe and the United States ( 1987), which is Volume 3 of Integration Through Law: Europe and the American Federal Experience.
5.
Paul v. Virginia, 75 U.S. 168 ( 1868).
6.
The judiciary must be able to act at the insistance of some agency other than a government, for example, at the initiative of a private party, lest it degenerate into another forum for simple political negotiations between sovereign nations.
7.
Maine v. Taylor, 477 U.S. 131 ( 1986).
8.
The most dramatic recent example is Exxon Corp. v. Governor of Maryland, 437 U.S. 117 ( 1978), where the Court upheld a rule that barred almost all out-of-state gasoline companies from operating gasoline stations but that had almost no effect on in-state companies.

-150-

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Comparative Constitutional Federalism: Europe and America
Table of contents

Table of contents

  • Recent Titles in Contributions In Legal Studies ii
  • Title Page iii
  • Contents v
  • Foreword: Toward a National Identity in the European Economic Community vii
  • Notes x
  • Preface xi
  • 1: The First Phases of American Federalism 1
  • Notes 16
  • 2: Economic Integration and Interregional Migration in the United States Federal System 21
  • Notes 50
  • 3: Preservation of Cultural Diversity in a Federal System: The Role of the Regions 67
  • 3: Preservation of Cultural Diversity in a Federal System 67
  • Notes 75
  • 4: Putting Up and Putting Down: Tolerance Reconsidered 77
  • Notes 105
  • 5: Protecting Human Rights in a Federal System 115
  • Notes 133
  • 6: Conclusion 139
  • Notes 150
  • Bibliographical Essay 153
  • References 159
  • Index 163
  • About the Editor and Contributors 167
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