The Extra-National State: American Confederate Federalism and the European Union

7 Colum. J. Eur. L. 173 (2001)

Larry Catá Backer. Professor of Law. Pennsylvania State University, Dickinson School of Law, 150 S. College Street. Carlisle, PA 17013, USA, 717.240-5243 (direct), 717.240-5126 (fax).

“I’ll be damned. So, if Gouverneur Morris were drafting today, he would have had to write ‘We, the Peoples of the United States.’ How different that sounds.”
St. John pursued her advantage. “Good stylist that he was, that’s what Governeur Morris would have to write. But more correctly, ‘We, the Peoples of the signatory States.’ If he had had then to compose the phrase in the French he spoke so well, it would have been crystal-clear; he would not have been able to hide the plural for ‘people’ and for ‘United States’: Nous, les peuples des États- Unis.”
“That would have put the people back in the States.”
“Where they belonged,” added St. John smugly. She paused and then made a pronouncement.
“Calhoun’s s, this is the fatal flaw.” [1]

This article examines the ways in which John C. Calhoun’s theories of federalism, suppressed in the United States after the American Civil War, now shape the European debate over the nature of the European Union’s political organization. Most of the academic work regarding the “lessons” offered by American federalism for the European Union (“EU”) and other supra-national systems has predominantly focused on an understanding of post Civil War American federalism. It remains, on that account, extremely superficial. The more important lessons of American federalism are to found in Calhoun’s marginalized understanding of federalism. This alternate vision of the possibilities of federal organization may yet provide emerging supra-national unions, the most important of which is the European Union, with a powerful conceptual foundation for the construction of non-national federal systems of government. Indeed, the political future of the European Union and other supra-national systems will likely be based on a different resolution of the great debates about federalism than that which ended in the United States with the Civil War. Understanding the possibilities inherent in this alternative resolution requires reconsideration of previously accepted “truths” about the relation of supra-nationalism to federalism, and a more sophisticated understanding of the possibilities of federalism in domestic and international law.’ The theories of multi-state association, which were rejected in nineteenth century America, may prove extremely forward-looking in the twenty-first century world of small ethnically homogenous communities and large pluralistic super-unions.