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Deuxième séance de travail — Les retombées
Second working session — The impact
PANEL DE discussion
◊
DISCUSSANTS
Internal Legitimacy
and Europe’s Piecemeal
Constitution:
Reflections on
Van Gend
at 50
Daniel Halberstam
Eric Stein Collegiate Professor of Law, UNIVERSITY OF MICHIGAN LAW SCHOOL
Europe is often said to lack a proper constitution of the radical Ameri-
can kind. That may be so, but there is a different, more promising sense in
which Europe might be following the very best of the constitutional tradition.
An American Prologue
In
The Federalist No. 15,
Alexander Hamilton famously argued in favour
of the United States Constitution by highlighting the shortcomings of the
Articles of Confederation:
‘The great and radical vice in the construction of the existing
Confederation is in the principle of legislation for States or govern-
ments, in their corporate or collective capacities, and as contra-distin-
guished from the individuals of whom they consist.’
This reflected the fact that the Articles of Confederation were much like
a limited treaty organisation, with powers only to create further treaty obli-
gations on signatory states but not to pass any laws that governed individu-
als directly. As a consequence, Hamilton explained, resolutions taken under
the Articles of Confederation ‘in theory … are laws, constitutionally bind-
ing on the members of the Union, yet in practice they are mere recommen-
dations, which the States observe or disregard at their option’. This left the
