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Member State Liability and Constitutional Change in the United States and Europe


James E. Pfander


Northwestern University School of Law


American Journal of Comparative Law, Vol. 51, No. 2, 2003

Abstract:     
In a well-known series of recent cases, the Supreme Court of the United States has dramatically narrowed the obligation of states to comply with the rules of accountability that Congress has applied to other aspects of our national commercial life. Although the Court has frequently invoked the Eleventh Amendment to defend its narrowing of state accountability, its decision in Alden v. Maine makes clear that state sovereign immunity rests less on the text of the Constitution than on unwritten structural postulates that it has described as "implicit in the constitutional design." Across the Atlantic, the European Court of Justice has drawn on similarly unwritten postulates in developing rules to govern member state accountability to central legislative norms. Yet in Europe, the ECJ has pushed in the opposite direction, expanding member state liability beyond the limits specified in the treaties that constitute the European Union.

This paper takes the differing approaches of the Supreme Court and the ECJ as the jumping off point for a rumination on the legitimacy of constitutional change in federal systems. In Europe, a doctrine known as the acquis communautaire has evolved in ways that require newly admitted member states to subscribe not only to the formal terms of the treaties themselves but also to the unwritten rules that the ECJ has announced in working out a jurisprudence of European integration. Avowedly forward looking, the acquis provides an underpinning of legitimacy for the ECJ's jurisprudence. In effect, the acquis suggests that each member state, upon accession to the Union, must accept both the specific terms of prior judicial decisions and the notion of an evolving jurisprudence. In the United States, by contrast, the Supreme Court's decisions have looked backwards through the lens of originalism to identify the nature of the accessionary bargain of the original thirteen states. Such a backward-looking originalism corresponds to the emphasis in the American equal-footing doctrine on the nature of the original deal among the states that formed the Union. It also corresponds to the Court's rejection of the metaphor of living constitutionalism that one finds most famously expressed in Justice Holmes opinion in Missouri v. Holland.

The paper concludes with a suggestion that the acquis, coupled with the relatively dynamic quality of European federalism, may help to explain the ECJ's evolving jurisprudence of constitutional integration. Europe continues to grow, with the planned accession of ten new member states in 2004 and more on the way. In the United States, by contrast, no new member states have joined the Union since the late 1950s, and the prospects for further growth as a nation seem remote indeed. The closing of the border in the United States may have contributed to the perception that the project of federal integration has been completed. Such developments may have also contributed to a closing of the judicial mind to the possibility of further change in the nature of federal relationships.

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Date posted: June 18, 2003  

Suggested Citation

Pfander, James E., Member State Liability and Constitutional Change in the United States and Europe. American Journal of Comparative Law, Vol. 51, No. 2, 2003. Available at SSRN: http://ssrn.com/abstract=416601 or http://dx.doi.org/10.2139/ssrn.416601

Contact Information

James E. Pfander (Contact Author)
Northwestern University School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
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