Federal Autonomy and Legal Theory in US Antebellum Constitutionalism: A View from Europe
(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1361-1401 | Article | (Table of Contents) I. Introduction. – II. The autonomy of the federal legal order in US antebellum constitutionalism. – III. Justifying legal order. – IV. Autonomy, dual federalism and the moni...
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| Format: | Article |
| Language: | English |
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European Papers (www.europeanpapers.eu)
2024-02-01
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| Series: | European Papers |
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| Online Access: | https://www.europeanpapers.eu/en/e-journal/federal-autonomy-legal-theory-us-antebellum-constitutionalism-view-from-europe |
| _version_ | 1797305126371721216 |
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| author | Justin Lindeboom |
| author_facet | Justin Lindeboom |
| author_sort | Justin Lindeboom |
| collection | DOAJ |
| description | (Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1361-1401 | Article | (Table of Contents) I. Introduction. – II. The autonomy of the federal legal order in US antebellum constitutionalism. – III. Justifying legal order. – IV. Autonomy, dual federalism and the monism–dualism dichotomy. – V. Conclusion. | (Abstract) This Article analyses debates in US antebellum constitutionalism on the “autonomy” of the US federal order in light of similar debates in contemporary EU constitutionalism. In the early American republic, two interrelated questions permeated constitutional theory: what was the nature of the federal order that had been created by the ratification of the US Constitution, and who was the final arbiter in constitutional questions. Today, 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 some of the main constitutional debates in US antebellum constitutionalism, showing that these debates were remarkably similar to issues recently presented by the PSPP judgment of the German Federal Constitu-tional Court and the K 3/21 decision of the Polish Constitutional Tribunal. Secondly, this Article shows that both debates 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 “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 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. |
| first_indexed | 2024-03-08T00:21:22Z |
| format | Article |
| id | doaj.art-d5d5937a390043d68cb0f94210813792 |
| institution | Directory Open Access Journal |
| issn | 2499-8249 |
| language | English |
| last_indexed | 2024-03-08T00:21:22Z |
| publishDate | 2024-02-01 |
| publisher | European Papers (www.europeanpapers.eu) |
| record_format | Article |
| series | European Papers |
| spelling | doaj.art-d5d5937a390043d68cb0f942108137922024-02-16T09:28:09ZengEuropean Papers (www.europeanpapers.eu)European Papers2499-82492024-02-012023 831361140110.15166/2499-8249/722Federal Autonomy and Legal Theory in US Antebellum Constitutionalism: A View from EuropeJustin Lindeboom0University of Groningen(Series Information) European Papers - A Journal on Law and Integration, 2023 8(3), 1361-1401 | Article | (Table of Contents) I. Introduction. – II. The autonomy of the federal legal order in US antebellum constitutionalism. – III. Justifying legal order. – IV. Autonomy, dual federalism and the monism–dualism dichotomy. – V. Conclusion. | (Abstract) This Article analyses debates in US antebellum constitutionalism on the “autonomy” of the US federal order in light of similar debates in contemporary EU constitutionalism. In the early American republic, two interrelated questions permeated constitutional theory: what was the nature of the federal order that had been created by the ratification of the US Constitution, and who was the final arbiter in constitutional questions. Today, 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 some of the main constitutional debates in US antebellum constitutionalism, showing that these debates were remarkably similar to issues recently presented by the PSPP judgment of the German Federal Constitu-tional Court and the K 3/21 decision of the Polish Constitutional Tribunal. Secondly, this Article shows that both debates 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 “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 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.https://www.europeanpapers.eu/en/e-journal/federal-autonomy-legal-theory-us-antebellum-constitutionalism-view-from-europeus antebellum constitutionalismfederal autonomynullificationprimacymonismdualism |
| spellingShingle | Justin Lindeboom Federal Autonomy and Legal Theory in US Antebellum Constitutionalism: A View from Europe European Papers us antebellum constitutionalism federal autonomy nullification primacy monism dualism |
| title | Federal Autonomy and Legal Theory in US Antebellum Constitutionalism: A View from Europe |
| title_full | Federal Autonomy and Legal Theory in US Antebellum Constitutionalism: A View from Europe |
| title_fullStr | Federal Autonomy and Legal Theory in US Antebellum Constitutionalism: A View from Europe |
| title_full_unstemmed | Federal Autonomy and Legal Theory in US Antebellum Constitutionalism: A View from Europe |
| title_short | Federal Autonomy and Legal Theory in US Antebellum Constitutionalism: A View from Europe |
| title_sort | federal autonomy and legal theory in us antebellum constitutionalism a view from europe |
| topic | us antebellum constitutionalism federal autonomy nullification primacy monism dualism |
| url | https://www.europeanpapers.eu/en/e-journal/federal-autonomy-legal-theory-us-antebellum-constitutionalism-view-from-europe |
| work_keys_str_mv | AT justinlindeboom federalautonomyandlegaltheoryinusantebellumconstitutionalismaviewfromeurope |