GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
Federal Democracy versus Democratic Federation :
The United States of America and The European Union
Arnaud Coutant
Senior Lecturer in Public Law
Assistant Dean of Rheims Faculty of Law
Rheims, France
Abstract—In this article, two concepts, Federal Democracy and
Democratic Federation are described and used to understand
American and European political systems.
This major aspect is the result of a new legal interpretation.
Identifying many contradictions in the previously used
concept, this recent work solve them in creating an original
approach3. This approach emphasizes the existence of two
levels in a Federation and resolves a critical issue of this type
of regime, the place of sovereignty.
The traditional distinction between Federation and
Confederation don’t have a real result when we want to use it
to analyze political systems. For this reason, a group of criteria
has been selected and privileged, in recent years.
A Federation is characterized by the existence of two decisionmaking levels. On the one hand, a level exists in the Member
States. Founding Texts organize the State institutions with
specific powers. On the other hand, the Federal Government
constitutes the other level. This Government has specific
powers, specific institutions and is based on one or more
major texts4.
Ironically, the two levels have interdependent and
autonomous relations. They are autonomous in respect the
powers attributed to them by the founding texts. The Federal
Government is freely within its powers as States. Their
decision-making autonomy is protected by the original texts.
They are at the same time interacting in the areas in which
they are active together. Some policy pursued by the Federal
Government involves the consistent action by the States. In
this type of powers, the States obey the Federal Government.
The two levels are autonomous but are limited in their
competence. It’s essential to understand their level of action
and a fundamental concept, sovereignty.
In law, this sovereignty is defined as the omnipotence, i.e. the
possibility to act without limit and without brake, the
possibility of setting the competence of its competence. In a
Federation, neither federal nor State level have such power.
Consequently, neither one nor the other can be considered
sovereign.
This sovereignty depends on founding documents of the
Federation which establish the competence of the two levels.
Sovereignty belongs to the original author of this text that is
fixed the actions of the two levels and which can change the
powers. Here is the competence of the competence and the
redefinition of the institutional building all opportunities.
Keywords-component; Democracy, Federation, United States,
European Union
I.
INTRODUCTION (HEADING 1)
The Atlantic Ocean bounds two Unions of States. The First
has existed since 1787 in its constitutional form and has
undergone multiple both legal and historical changes. The
United States of America is a Federation of 50 States. The
Political Regime is based on a Democratic system. To build
these two aspects, Federation and Democracy, the Union of
States had to cross many crises, between the States and the
Federal Government as the nullification1, between the States
themselves, as the Civil War or between the Federal powers.
Each crisis changed the balance of powers and implied a
redefinition of legal concepts. Much more recent, the European
Union took a Federal form since 1992 and the Treaty of
Maastricht2. This development is not complete because specific
elements remain. Its democratic character comes from the
Member States and, in part, the operating mode chosen. From a
general point of view, the two Unions are the result of an
alliance between two legal concepts, the Federation and the
Democracy. However, because of singular developments and
specific events, the miscellany is very different. The purpose of
this contribution is to highlight the differences and common
points of the two systems to show two models of collaboration
between States, the United States constitute a Federal
Democracy while the European Union offers an example of
Democratic Federation. To do this, we must first redefine the
two concepts in connection with their American and European
concepts, before considering the two examples involving
Federation and democracy to distinguish them.
II.
THE FEDERATION, THE DEMOCRACY AND THE BOTH
UNIONS.
A. Two Federations.
Before analyzing the two unions, it is essential to consider the
concept of Federation because of its recent redefinition in
public law.
DOI: 10.5176/2251-2853_2.2.102
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
another problem because there are several people in Europe
and not just a People, which would be European.
The application of the previous concept in the two unions
reveals a interesting point in terms of comparison. Levels
question is easily resolved but the application seems to be
much more difficult in the European system.
A quick review shows the existence of two levels in the US
system.
There is a federal level with a Federal Government consisting
of three members, the President, the Congress and the
Supreme Court, whose powers are fixed by the constitutional
text. There is also a State level with its own powers and its
modes of operation. The constitution of 1787 is the basis and
establishes the competencies of the levels and their
interactions. Autonomy and interdependence are clearly
devoted.
An element is particularly instructive: this situation is the
result of a long history, rich in conflicts between States and
the Federal Government, which concern the identity of the
titular of powers, the scene of political decision and the
current balance. The question of sovereignty gave rise to
numerous political and legal debates on multiple occasions
over the two centuries of existence of the federal structure.
The different events emphasize the existence of two
completely opposite currents, the first defending sovereignty
of States, the second sovereignty of a central Government, the
two currents failed to impose their design. The existing system
retains a perspective balanced between the two levels.
This expression still raises many questions in Europe. Indeed,
the two levels exist, nevertheless, many political leaders still
refused to discuss a Federation, and preferred the term
“integrated organization” or “Federation of nation States”5.
The dispute focuses on the idea of sovereignty.
At first we can say that the two levels are explicitly present in
the European Organization. There is a Federal Government
with the European Parliament, the commission, the two
Councils and the Court of justice of the European union. There
are also State Governments with their specific characteristics.
The European treaties laying down the powers of the two
levels and the relationships between them can be characterized
as founding texts of the organization. Autonomy and
interdependence appear clearly with the principle of
“subsidiarity6”, the powers reserved for the States or the
provisions to apply in the States as the “Regulations” or
“Directives”.
However, a question seems always left outstanding:
sovereignty. The place of the power continues to raise
difficulties, although the debate is partly distort. Of course,
States still claim a place first in the structure. But, while they
do this for their sovereignty, the application of the preceding
criteria easily demonstrates that State sovereignty is no longer
in the European system. By definition, limiting the
competence of the States by the treaties, the Governments and
the peoples of the States have abandoned the possibility to
establish alone the competence of their powers, therefore their
sovereignty. In principle, by definition, the European texts are
a result of the Organization and their legitimacy are assured by
the agreement of the Members States. On this point, there is
B. Two Democratic systems.
We must make a legal definition of the concept of democracy
before applying it to the two examples.
This Concept is one of the richest and most necessary
concepts for modern law. Its sometimes inappropriate use
makes its redefinition necessary to legally set the contours of
the concept. After review, we find easily that Democracy has
two aspects, while separate but necessarily related, as
complementary.
The first aspect relates to the functioning of the system and its
legitimacy. Democratic is a regime founded on the sovereignty
of the people, i.e. on the expression of the wishes of all the
citizens in the choice of the leaders and the great political
choices (citizenship being the possible scope). This expression
implies the implementation of elections, the practice of direct
or indirect universal suffrage and multi-party system which,
alone, is able to render account of opinion of voters. This
formalism is also in working guarantees put in place at the
constitutional level, with a separation of powers essential to
protect decisions of the people and to avoid the confiscation of
power by some.
This second aspect is necessary to the existence of the
concept. A regime which does not guarantee the rights of
individuals and citizens cannot be democratic. The existence
of this second aspect of democracy requires the textual
recognition of rights, the implementation of documents
establishing specific rights and the judicial protection of their
application. Without this protection, the text cannot be
respected since its violation is not sanctioned. Democratic
systems can vary considerably as the rights depend on plans
and popular choices. However, there are a few fundamental
rights in all of the schemes as freedom of expression, freedom
of movement or religious freedom.
The application of the preceding criteria to the American and
European systems reveals the two notions that the necessary
adaptation of the concept to take into account the
particularities; there is an American notion of democracy and
a European one.
The United States form a democracy because they are based
on a formal democracy and a material democracy.
From the formal point of view, the institutions are elected by
universal, direct or indirect suffrage at the federal level, the
President and the Congress, as at the level of the States. This
universal suffrage refers to citizenship, established after
multiple changes (women suffrage between 1919 and 19207,
black suffrage in 1865 and 1965 after the end of segregation8).
The system is mainly bipartisan, since the elections reveal two
main parties, currently the Democratic Party and the
Republican party.
From the material point of view, a double protection device
exists with texts at the level of the Federal Government (Bill
of Rights) and at the level of States (declaration of rights). The
judicial guarantees are also present with a Supreme Court and
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structures that depend on in the States and State courts. The
major developments of the jurisdictional history summarized
the place and the role of the Supreme Court in the protection
of rights (in 1803 with The Judicial review, in 1937 with the
incorporation of the Bill of Rights and its application to the
States).
At the European level, can the same study be conducted? We
can focus on both democratic aspects, but their analysis shows
uncertainty on the elements of this democracy and the
functioning of the scheme at the General level.
At the formal level, the powers and institutions are in part
designated by the citizens. But this painting is too simple9. On
the one hand, the elections do not concern all the European
institutions. The European Parliament is elected by the citizens
but the commission is designated by the heads of State and
Governments of the Member States and the Council of
Ministers of the Union is only a meeting of the Ministers of
the States. On the other hand, and this reinforces the previous
comments, the European elections that allow the designation
of Parliament depends on States with respect to the mode of
appointment. At the level of the States, on the other hand, the
formal Democracy is indeed present, with the designation of
the major powers by the election in all States and with
extended citizenship. The partisan question raises another
problem because the parties of State appear in the foreground.
The existence of European parties, involved in the institutions,
as the European Socialist Party or the European people's Party
in the European Parliament, do not accompanied of similar
designs in the States. They retain their national organization
partisan, based on a two-party system or a multi-party system
by States.
At the material level, doubts are much more troublesome.
There are at the level of the States founding texts which
guarantee many rights and jurisdictions to the proper
application of these guarantees. In contrast, at European level,
uncertainties exist as to the possibilities for action of a
European Court. The Court of justice of the European union
has an essential role with regard to the effective
implementation of the decisions of the union. However, its
powers in defense of the human rights appear remarkably
fragile. Indeed, it was not until the Treaty of Lisbon, in 2008,
to find a textual recognition of fundamental rights in the
founding treaties. The Charter of fundamental rights that has
developed nearly of a decade to appear always currently raise
questions of application and scope10. This situation might be
compared to the US system in the 19th century and early 20th
century before incorporation cases. Example: should we apply
the Charter of fundamental rights to the decisions of the
European union only or extend it to the decisions of the
States? This question is essential because it clearly raises the
problem of the level of decision and of the extent of the
powers of levels. The European Union is a Union of
Democratic States but is it a Democratic Union of States?
The two concepts are present in the two organizations but with
important differences. What are the consequences of these
differences in a judicial point of view? in other words, how to
define plans created under the concepts in place?
III.
TWO EXAMPLES OF FEDERAL AND DEMOCRATIC
REGIMES.
The two examples mix the two concepts but in the working
and in chosen balances, we easily found a difference in basis
which can be semantically translated by two distinct legal
concepts.
A. The United States of America, a Federal Democracy
For historical and political reasons, the American system has
evolved towards a federal democracy, i.e. to a federal political
system in which democracy and its consequences found
primarily at the level of the Federal Government. The situation
is characterized by a stronger Federal Government, with
tendency to centralization, and by States more bound by
Federal decisions, but which, however, retain an existence.
Originally, the question of centralization, i.e. consolidation in
the American sense was essential in the constituent debates.
As far back as the constituent period, any federalists, among
the most known, as Hamilton, defended a limitation of the
States powers and a transfer to the Federal Government
became central. American history provide a response by
concentrating more powers at the federal level.
By successive evolutions, this increase has been recognized in
the system itself. Several steps can be highlighted.
The civil war between 1860 and 1865 laid the foundations for
an extension of federal powers focusing on disputes of slavery
and the place of individuals.
At the judicial level, the interpretation of the commerce clause
primarily allowed an increase in the powers of the Congress,
and thus of the Federal Government, increasing the powers by
the interpretation of the constitution.
The quarrels during the period of the New Deal also had this
effect with the recognition of general competence of the
Federal Government by the dominant case interpretation.
Such an extension has led to question the place of the people.
The increase in the powers of the Federal Government would
result in a connection reinforced with the people, at that level,
on behalf of the legitimacy and the foundations of the regime.
Logically, this increase in powers therefore accompanied
Democracy, institutional changes primarily. The first
evolution concerned formal democracy and elections of
institutions by universal suffrage. The House of
representatives already supports elected by direct universal
suffrage since the evolution of 1920. The Senate’s designation
was amended to replace the votes of the legislatures of the
States by the votes of citizens.
At the material level, the Bill of Rights became a legal source,
not only at the level of the Federal Government, but also the
level of the States with its extension. The recognition of its
value to the federal structure was made possible by the action
of the Supreme Court in two times. First, the American Court
spent the Bill of Rights as a limit to the power of the Federal
Government. This interpretation occurred in the early 19th
century and continued into the 20th century. Second, the
Supreme Court has extended the consequences of the Bill of
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decisions of the Supreme Court restricting federal
interventions in name of federalism.
In General, it can be noted the specific nature of the American
Union as the marriage between Federation and Democracy has
led to a Federal Democracy that is a semi government
centralized, maintaining a federal organization internally. Like
a mirror, the European system seems to return an image
exactly opposite.
Rights by incorporating its content to the texts limiting the
powers of the States.
The modification of the balances between the levels in the
American Union has certainly affected States; However, it did
not eliminate the Federal aspect of the American system, i.e.
the existence of a State level.
The weakening is undeniable as far as the powers and the
place of the States are concerned. It is the result of many
historical conflicts with successive legal redefinitions. Two
events illustrate this type of evolution.
The first is relatively old as it dates from the first half of the
19th century. Between 1828 and 1833, a crisis between the
State of South Carolina and the Federal Government. This
crisis, named nullification ask the question of the place of the
two levels in the Federation. South Carolina refused to enforce
a federal tariff law because this Act, in its interpretation, was
contrary to the federal constitution. Returning to the
constitutional design in its origin, South Carolina leaders
defended the existence of a State right of constitutional
review. States as to the origin of the constitution, they should
be able to protect it, including by stopping the federal laws
they deemed unconstitutional. The right qualified right of
nullification was part of State powers according to the state
politicians in South Carolina. The failure of this movement by
the reaction of the Federal Government and by the rejection of
the legal reasoning by the other States highlighted the
abandonment of sovereignty at the State level11.
A second stage set democratic protection at the federal level.
With the decisions on the incorporation, the Supreme Court
submitted the laws of the States in the Bill of Rights and its
own interpretation of the document. By definition, the judicial
protection as one of the elements of material democracy, its
concentration at the Federal level has reduced the place of
States and has made this level the best able to defend the
democratic approach.
Despite a development contrary to the extension of their
powers, States have not entirely lost their influence in the US
system. Their weakening is not synonymous of a suppression
of State level. The competences have been maintained and
have even given rise to quarrels renewed in a recent period.
State powers remain secured at the constitutional level of
certain policies are always reserved for the States. The
decision-making autonomy was limited in its powers but not
in its form. In addition, the guarantee of the rights of
individuals remains dependent on the State level because of
the existence of legislation guaranteeing the rights in the
States and state jurisdictions which defend the application of
these texts.
In addition, recent developments have even led a general
query on a rebalancing of the American building possible. The
new federalist movement, led at the time by politicians such as
Ronald Reagan and members of the High Court as William
Rehnquist, insisted on the rights of the States and the
Federation as system guaranteeing the competence of the
States12. The issue of State powers gave rise to several
B. A Democratic Federation, the European Union.
Because of Historical and Political elements, The European
Union seems to be an inverted image, compared to the
American evolution. While the American initial alliance asked
the question of a possible centralization, the first institutional
form chosen in Europe was founded on states. Changes and
transformations have therefore led to a system out of balance
for the benefit of States.
The first form the European structure has selected had little
resemblance with a union or a Federation. The term of
community also meant the pursue of common interests for a
specific purpose.
The mirror effect is even more visible in the origins of the
European idea. Many supporters of Europe, in the aftermath of
the second world war, seek first to stop conflicts between
States on the continent13.
In contrast to the American union, built for to face a common
enemy, the European organization brings together enemies
and they cooperate in certain key sectors. The main symbol
resides in the role of France and Germany in the European
construction in the early years. The Alliance took the form of
enhanced economic cooperation, in specific areas, coal and
steel, the European Economic Community and the atom. The
multiplication of relations between people is intended to limit
any risk of war.
The Interstate organization that appears on this date, in the
early and mid-1950s, obeys this logic. It is a building complex
of treaties between States, thematic first, with the ECSC
Treaty (1951), the EEC Treaty (1957) or the Euratom Treaty
(1957) and then in a more comprehensive manner, the single
European Act in 1986. The organization had an aim: regulate
the economic relationship between Democratic states. There
were two levels but the Federal level remained complex.
Many treaties organized the relationships between institutions,
which were specific by treaty. For instance, the powers of the
commission were different in each organization, because they
depended on each treaty.
Talk about a federal system sound strange because of actions
and internal problems of the European union. But it is a
federal union which appears through the various latest texts.
Nevertheless an element remains essential, spite of evolution,
the superiority of the States, which makes it a Federation of
democracies.
The two levels are present with the replacement of the EEC
and other organizations by one federal organization.
The Treaty on European union in 1992 and the following
treaties will gradually simplify the institutions and give rise to
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GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
REFERENCES
a real federal structure with its two levels. We found a
legislative organ, European Parliament, a judicial one, the
Court of justice of the European union, and an Executive one,
much more complex in its organization. The initial Interstate
specificity tends to disappear with the establishment of
General Union powers and independent institutional structures
of the States. Talk of democracy at the federal level seems
possible with the European Parliament and his organization.
Yet, the system remains clearly unbalanced to the States. This
observation may be made after an analysis of devices
operation scheduled for a regular period and after a study of
recent malfunctions related to a specific budgetary and
financial crisis.
In normal operating mode, this superiority appears at times
key policies, such as the appointment of a President of the
Union14 or the Commission or the budgetary issue. The weight
of the States is obvious because the choices are made by the
heads of State. In addition discussions much more resemble
interstate agreements than internal discussions to a democratic
regime.
In crisis, this is even more striking. The Federation disappears
as a structure of action ; States (and sometimes only some of
them, Germany and France in 201115) act and decide directly.
Agreements between States, at the level of the States, are thus
required to reach decisions. The weight of people appears at
the level of the States and their Governments and not in a
Federal Government that is very limited in its ability to act.
Some see a reason for the difficulties of operation, others a
clue of European specificities.
[1]
[2]
[3]
[4]
[5]
[6]
[7]
What conclusions to draw from these different developments?
First, we can notice the existence of two unions, based on a
Federal and Democratic organization. The two levels are
characterized by institutional, certainly different, but with
specific powers and balances. The study of these two
organizations illuminates the concept of Federation by
providing examples, two ways to implement, in two separate
systems.
Second, the historical vicissitudes experienced by the two
unions, European and American, are significant. The two
examples are by nature unstable and brought to evolve to be
adapted to periods, contexts, or figures in power. The slow
European integration on the basis of the organization can be
opposed to the building of the American union by successive,
more or less consistent steps.
Finally, a last remark can be made from these different
developments. Paradoxically, the two unions are as similar as
different. As the concepts by which we have identified, federal
democracy and the Democratic Federation, the American
union and the European union have obvious similarities. Their
legal study is necessary to understand the Federal specificities
and the democratic inconsistencies that can arise from the
alliance between the two legal concepts, once their
redefinitions made.
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
5
Jean-Philippe Feldman, La Bataille américaine du fédéralisme, John C.
Calhoun et l’annulation, Paris, Presses Universitaires de France,
Léviathan, 2004, 294 p. ; Chauncey S. Boucher, The Nullification
Controversy in South Carolina, Chicago, University of Chicago Press,
1916, 399 p. ; William W. Freehling, Prelude to Civil War: the
nullification controversy in South Carolina, 1816-1836, Oxford, Oxford
University Press, 1992, 395 p.
Jenna Bednar, John Ferejohn and Geoffrey Garrett, "the Politics of
European Federalism", in Dieter Schmidtchen, Robert Cooter,
Constitutional law and economics of the European Union, Edward Elgar
Publishing, 1997, 314 p.; p. 79.
Olivier Beaud, Théorie de la Fédération, PUF, Léviathan, 2007, 433 p.
Arnaud Coutant, L’Amérique des Etats, les contradictions d’une
démocratie fédérale, Mare et Martin, 2011, pp. 41 et suiv.
Tanja A. Bôrzel, Thoams Risse, "Who is afraid of a European
Federation? How to constitutionalise a multi-level governance system?",
in What Kind of Constitution for What Kind of polity? Responses to
Joschka Fischer, The Robert Schuman Centre for Advanced studies at
the European University Institute, Florence, Christian Joerges, Yves
Meny and J. H. H. Weiler (editors), nov. 2000, 266 p.; pp. 45-60.;
Symposium: Responses to Joschka Fischer, Fédération d'Etats-nations
ou Etat fédéral?, Charles Leben, the jean monnet center for international
and regional economic Law and Justice, 2000.; Jean-Louis Quermonne,
La « Fédération d’États Nations » : concept ou contradiction ?, Revue
française de droit constitutionnel, 2010/4 (n° 84), 677-692.
For instance: Ute Collier, Jonathan Golub, Alexander Kreher,
Subsidiarity and shared responsibility: new challenges for EU
environmental policy, European University Institute, Nomos, 1997, 196
p.
Elizabeth Frost-Knappman, Kathryn Cullen-Dupont, Women’s Suffrage
in America, Infobase Publishing, 2005, 496 p.; Anne F. Scott, Andrew
M. Scott, One half the people: the fight for woman suffrage, University
of Illinois Press, 1982, 174 p.; Reva Siegel, “she the people, the
Nineteenth Amendment, sex equality, federalism and the family”,
Harvard Law Review, 115, feb. 2002, 947-1047.
A. Coutant, l’Amérique des Etats, op. cit., pp. 492 et suiv. ; Michael J.
Klarman, From Jim Crow to Civil Rights: the Supreme Court and the
Struggle for racial Equality, Oxford University Press, 2004, 672 p.;
Frederic O. Sargent, The Civil rights revolution : events and leaders,
1955-1968, McFarland, 2004, 188 p.
Deirdre Curtin, Executive Power of the European Union: Law,
Practices, and The Living Constitution, Oxford University Press, 2009,
345 p.; p. 295.
Di Federico Giacomo, The EU Charter of Fundamental Rights: from
declaration to binding instrument, Springer, 2011, 320 p.
Boucher, The Nullification Controversy in South Carolina, op. cit ;
Freehling, Prelude to Civil War:…, op. cit.
Jeffrey Rosen, « Supreme Mistake », The New Republic, nov. 8th 2004,
18-23; F. Vergniolle de Chantal, “la cour Rehnquist et le fédéralisme
aux Etats-Unis : peut-on parler d’un projet néofédéral ? » Revue
internationale de droit comparé, 3, automne 2004, 571-602.
Klemens Bott, "Belgian Political Parties and Pressure Groups in the
Discussion on European Union", in Walter Lipgens, Wilfried Loth,
Documents on the history of European integration: The struggle for
European Union by political parties and pressure groups in western
European countries, 1945-1950, Walter de Gruyter, 1988, 849 p.; p.
276.
Jean-Louis Quermonne, Jacques Delors, L'Union européenne dans le
temps long, Presses de Sciences Po, 2008, 231 p.; p. 157.
Finn Laursen, The EU and federalism: polities and policies compared,
Ashgate Publishing, Ltd., 2011, 283 p.; pp. 217-218.
© 2013 GSTF
GSTF International Journal of Law and Social Sciences (JLSS) Vol.2 No.2, April 2013
Arnaud Coutant is a Senior Lecturer in Public Law and Associate
Dean of Rheims Faculty of Law (University of Rheims
Champagne-Ardenne). His works are about Constitutional Law
and Constitutional History. His main books concern the
Constitutional Thought of Alexis de Tocqueville (Tocqueville et la
Constitution democratique, Mare et Martin, 2008) and The
American Constitution (L’Amerique des Etats, les contradictions
d’une democratie federale, Mare et Martin, 2011; Histoire
constitutionnelle des Etats-Unis, Mare et Martin, 2012). He is
fascinated by the Concept of Democracy and its consequences in
constitutional Law.
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