Detailing the European and American respective developments of federalism, it is difficult not to notice an interesting contrast in their construction process.
On the European side, the process, which began largely with judicial actions, is now proceeding into the political arena thus enabling more political institutions and community citizens to participate. The stage of federalist debates has moved from the Court of Justice to the Convention which was opened to draft the Constitution for Europe. On the American side, however, federalism unfolded in the opposite direction. It has been progressed mainly through constitutional politics and citizen mobilization after the American federalist principle was first codified in the Founding document as well and in the Reconstruction amendments. The platform for discussing federalist
56 McCulloch v. State of Maryland, 17 US 316 (1819).
arrangements has transferred from conventional meeting places to the courtroom of the Supreme Court.
Since the New Deal, the main actors in debating and deciding the nature of American federalism have been judges. During the 1960s and 70s, it was the Court of Justice that debated and decided similar issues in the European Community. But, that is changing now, and in fact the construction process of federalism never remains the same. Its changes in pattern or direction is reflective of external or internal factors and driving forces such as politics, global process, and democratic concerns.
Ⅳ. Conclusion
“Federalism” has become a vital discourse in comparative constitutional law. In recent analysis, federalism is understood in functional terms, denoting any power relationships between a center and its peripheries. The functional understanding of federalism not only enables the analysis of supranational federalism but also—and perhaps more importantly—sheds light on a more dynamic way in which federalism may function as a process.
Process federalism gives rise to academic interests in understanding constructive federalism: the process by which the center and peripheries are built and interact with one another.
It is in the light of process federalism that this article recasts the two stories of the construction of federalism. The comparison of constructed federalism in the European Union and the United States shows different patterns. The path of European federalism begins with treaties, while American federalism developed by way of constitutions.
The organizing principle of the Europe Community is premised upon the theories of subsidiarity and proportionality, but the Americans have relied on the principle of dual sovereignty. Regarding their respective enforcing mechanism, the European Community relies largely on judges, whereas the US puts more emphasis on constitutional politics and citizen mobilization. In addition, the
organizational focus has been different. The European Community started with economic cooperation, in contrast with a more comprehensive agenda formed during the Founding of the US Finally, the construction of both paths seems to venture in opposite directions.
The European process proceeds from the court to politics, from the elite to the community level, while the American journey began in politics and veers toward the courtroom.
With the comparison of the two stories, it is evident that the patterns in the respective constructions of federalism are different.
The differences, however, are not to be overly exaggerated. The success of the Europe’s coming together and moving towards a more solid union suggests that federalism does not necessarily require political structures that are territorially defined. The construction of federalism goes beyond the traditional boundaries of a nation-state. It can be exercised in a supranational structure which binds the center with the peripheries (MacCormick, 1993).
The comparative findings of this article further suggest that the pattern of constructing federalism remains flexible. The process may begin with a Constitution or with a treaty. The organizing principle may be a devolutionary path toward centrality. Neither the principle of dual sovereignty nor the theory of subsidiarity inhibits a federalist arrangement between center and periphery.
The enforcing mechanism need not always be constitutionally codified. Through gradual judicial decisions, a solid and effective power arrangement can be sought. Even mere supranational economic cooperation can possibly be further developed into a consolidated version of an Economic Constitution and expanded into a full-fledge Constitution.
This flexibility of federalism construction is especially encouraging when one takes the future of other regional integrations and even the ongoing global integrative process into consideration. The comparative observations made in this paper suggest that transnational developments are not dependent upon any particular set of legal instruments or political processes. Within national boundaries or not, with treaties or constitutions, with an
economic focus or a broader one, constructing federalism is possible and may be developed. If so, the question to ask next is whether the many other emerging—and perhaps even more loosely organized—regional mechanisms, such as Association of South East Asian Nations (ASEAN) or North America Free Tread Agreement (NAFTA), could possibly be developed into a more solid, integrated framework (Ackerman, 1997; Weiler, 2000). Overly optimistic or not, this question requires further research to render any answer. For now, as far as this paper is concerned, and as suggested by the comparative analysis of the EU and US models in the light of process federalism, the efforts to construct federalism would not be constrained or inhibited by any particular set of juridical form or process. Some other factors, nevertheless, may have influence over it. Like it or not, the possibility of constructing federalism beyond traditional national territories and even in regional arrangements has existed and should be attributed to the further burgeoning of transnational constitutionalism.
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建構聯邦原則──歐盟與美國的比較研究
張文貞
摘 要
歐盟正朝進一步的整合持續穩定發展，歐盟與各會員國的關係 也逐漸往所謂的聯邦原則來發展；而美國則是採用聯邦原則的一個 成功典範。在聯邦原則的建立上，是否有一定的模式可尋呢？歐盟 此一超國家的組織，是否可能在「中心—邊陲」的權力分配與安排 上，採行聯邦原則？美國與歐盟在此一經驗上的比較又是如何？為 了理解此一問題，並比較美國與聯邦在建構聯邦原則上的異同，本 文首先對聯邦原則採取功能性的理解，將歐盟視為跨國聯邦。此 外，本文亦採動態分析，將歐盟與美國的比較，著重於二者在聯邦 原則的建構過程與互動方式。
本文發現歐盟與美國在建構聯邦原則的過程中，在途徑、組織 原則、執行機制、組織重心及建構過程等面向，都採取了完全不同 的方式，但兩者都成功整合中心與邊陲的權力運作。本文因此主 張，聯邦原則的建構以及聯邦模式的採行是有彈性的，並不受國界 的限制。建立跨國聯邦的可能性已經存在，並可能進一步引發跨國 憲政體制的發展。
關鍵詞：聯邦原則、管制性聯邦原則、跨國聯邦、二元主權、輔
助原則