The EUI Constitutionalism and Politics Working Group hosts a presentation by Justin Lindeboom (University of Groningen).
Abstract
This paper analyses debates in US antebellum constitutionalism on the ‘autonomy’ of the US federal order and the question who is the final arbiter, in light of similar debates in contemporary EU law. In the early American republic, two interrelated questions permeated constitutional theory: who was the final arbiter in constitutional questions, and what was the nature of the federal order that had been created by the ratification of the US Constitution. Today, roughly 200 years later, EU constitutional lawyers would have no trouble recognising these debates, which are essentially re-enacted both in scholarly discussions and in collisions between the Court of Justice and national constitutional courts.
This article starts with a brief historical overview of the main constitutional debates, roughly from the late 1790s until the early 1830s, on the autonomy of the US federal order and the question of who would be the final arbiter in constitutional questions. This overview aims to show that constitutional conflicts in the early American republic were remarkably similar to issues recently presented by the PSPP judgment of the German Federal Constitutional Court and the K 3/21 decision of the Polish Constitutional Tribunal.
Secondly, this article provides a preliminary comparison between American debates and current debate on the autonomy of the EU legal order, and shows how both discussions are characterised by a similar asymmetry: proponents of an autonomous federal legal order mainly use functionalist arguments, while proponents of the sovereignty of the states mainly use arguments about the alleged ‘nature’ or ‘origin’ of the federal order.
Thirdly, the article contrasts the framing of the debate about the autonomy of the US federal order with the monism–dualism dichotomy that is central to our thinking about the relationship between national and international law. It shows how this distinction – a product of early 20th century international legal theory – was not relevant to constitutional debates in the early American republic, and how that could cast a different light on the EU legal order today.
Speaker bio
Dr Justin Lindeboom is Assistant Professor of European Law at the University of Groningen. He is an Associate Member of the Centre for Law, Economics & Society at University College London. He has been a Fulbright Scholar at Harvard Law School (2021-2022) and Emile Noël Fellow at New York University School of Law (2019-2020) and has also held visiting fellowships at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg (2016), the European University Institute in Florence (2018), and University College London (2018-2019).
The event is open to all. If you would like to receive a copy of the paper prior to the event, please email constpol@eui.eu, with oskar.polanski@eui.eu in CC.