112
Daniel Halberstam
Deuxième séance de travail — Les retombées
Confederation at the mercy of the state legislatures (and state executives) who
would often shirk their duties under the treaty that had brought them together.
To help solve this problem, Americans wrote a constitution.The Supremacy
Clause most visibly addressed Hamilton’s complaint. The clause, as its name
suggests, provided that the United States Constitution, federal laws, and trea-
ties ‘shall be the supreme law of the land’, adding that ‘the judges in every state
shall be bound thereby, anything in the constitution or laws of any state to
the contrary notwithstanding’. Best understood by taking the text in reverse
order, this provision does two things. It provides (a) that federal law is im-
mediately applicable in state court and (b) that in cases of conflict, federal law
trumps. In so doing, the provision, and the Constitution as a whole, answered
the deficiencies of the Articles of Confederation that Hamilton lamented in
Federalist No. 15
.
Van Gend en Loos
Until the Lisbon Treaty was signed, Europe had nothing like the Supremacy
Clause. Instead, it had two judicial decisions,
Van Gend en Loos
(
1
)
and
Costa
v
ENEL
(
2
). I do not wish to settle here the debate about how naturally these
decisions flow from the original Treaties, that is, whether European judges or
member state politicians were ultimately responsible for bringing us direct
effect and, soon thereafter, supremacy. Suffice it to say that the reference pro-
cedure set forth in Article 177 EEC (now Article 267 TFEU) was central to the
development of those two interconnected doctrines.
Before there was
Van Gend
,
the European Coal and Steele Community of
1952 had already shifted significant power away from the Member State gov-
ernments. The ECSC dealt directly with individuals and enterprises in a reg-
ulatory and adjudicatory capacity, and granted ECSC institutions powers of
decision that could override an individual Member State’s views. In the words
of one early observer, the ‘cumulative effect’ of that treaty amounted to ‘a real
transfer of sovereignty’ (
3
). And as soon as the brand new European Court of
Justice acting under the ECSC handed down its first decisions, Eric Stein’s
(
1
) Case 26/62 [1963] ECR 1.
(
2
) Case 6-64 [1964] ECR 585.
(
3
) R. Vernon, ‘
The Schuman Plan: Sovereign Powers of the European Coal and Steele
Community’
, 47 Am. J. Int
. L.
183, 189 (1953).
