26 VOLUME 84, NUMBERS 1 & 2

E PLURIBUS EUROPA? ASSESSING THE VIABILITY

OF THE EUROPEAN UNION BY ANALOGY WITH THE
EARLY AMERICAN REPUBLIC

By ANDREW GLENCROSS

Introduction: The Neglected Study of EU Viablility

The sui generis interpretation dominant in mainstream European Union (EU) studies
is often accompanied by a blithe assumption that the EU has the political wherewithal and
willpower to keep overcoming its almost endemic constitutional status. Hailed as unique
among international treaty organizations, it has even been described by one commentator
as the embodiment of a "new European Dream" that "dares to suggest a new history, with
an attention to quality of life, sustainability, and peace and harmony.'" If deficiencies or
deficits are identified in this polity, then it often assumed that there is an institutional
solution: increasing the power of the European Parliament, establishing an EU senate to
represent member state governments in a second parliamentary chamber, or, perhaps, hav-
ing a directly elected president of the European Commission (an EU executive).^ What is
not problematized is, first, how the EU's political system has resolved previous crises and,
second, what this suggests about its potential for greater centralization. Simply put, how
and why is the EU viable as a form of political organization?
There is at least one very good reason why the viability of the EU should be questioned.
Federalism, of which the EU is a "species" as political scientist David McKay puts it, is
not considered a "notably successful governmental form."^ In the specific case of the EU,
tensions exist between and within the member states over a multitude of European issues
and policy debates: voting rights of member states, how much each member should con-
tribute to the budget, the reliance on NATO and problems of alignment with U.S. foreign
policy, and the question of Turkish accession. Lurching from one crisis to the next is a
specialty of European integration. Indeed, viability is a particularly vexing question pre-
cisely because of the uncertainty over the constitutive features of this new political entity,
characterized as it is by endless disputes concerning its powers, membership, legitimacy,
and ability to represent citizens democratically.
This nexus of unsolved issues represents a contest over the rules of the game of
European politics. This quandary of agreeing to the "rules of the game" is the problem par
excellence of attempts at creating a federal-like union of states - such as the EU and the
early American Republic - which start out as political projects with an uncertain end,
beset by the problem of multiple identities and interest cleavages. The claims made in this
study regarding the conditions for a viable EU do not relate to what it means for the EU
to be effective as a policymaker or for it to acquire the trappings of a sovereign state.
Rather, viability refers to the ability either to sustain a dynamic equilibrium, which man-

ANDREW GLENCROSS is a Lecturer in International Relations in the International

Relations Program at the University of Pennsylvania.
INTERNATIONAL SOCIAL SCIENCE REVIEW 27

ages but does not transcend the existing contest over the rules of the game, or else it entails
voluntary centralization, whereby disagreement over the rules of the game recedes as
member states acquiesce to pool more powers of decision and execution at the center. Both
scenarios are examples of viability for democratic unions of states because they solve the
twofold dilemma of trying to avoid coercive centralization and disintegration.
To overcome the neglect in EU studies of addressing the viability problem, an indirect
analogical comparison, which equates how the rules of the game were contested and man-
aged in the antebellum American Republic and the EU, is offered here to provide insights
into the viability of both systems.'' This analysis reveals that the EU has managed the
ongoing dispute over the rules of the game of European politics by preserving a dynamic
equilibrium: fundamental questions about powers and policy choices have been lefr unre-
solved. Conversely, the eariy American Republic witnessed a process of voluntary central-
ization in political life that took agenda-setting and veto power away from the individual
states. It was not the powers of the U.S. federal government that had changed dramati-
cally, although its prestige and authority were greatly consolidated. What had been cen-
tralized was the political life of the Union itself through a change in democratic practices.
Under the impulse of democratic reforms - in keeping with the notion of freedom
enshrined at the founding of the American Republic - election campaigns, political actors,
and, most importantly, policy issues were gradually centralized around the federal capital.
The basis of representation both for mobilization of the electorate and political debate
became the Union as a whole rather than its separate political units.
The purpose behind this centralization in the United States was to sustain a dynamic equilib-
rium over thefratricidalproblem of slavery, a solution that ultimately failed. Such a comparison
suggests that the EU, which is currently undergoing one of its periodic moments of agonistic
soul-searching, should be more aware of how its viability depends on the ability to keep finding
an ambiguous compromise between integration and euro-scepticism. The analogy also reveals
that, as shown by the American experience, democracy - in the sense of majoritarianism - can
frustrate the construction of a compromise over the rules of the game. This means that one
should be cautious of claims that democratizing the EU is the panacea for its ills.

Contrasting and Explaining the Viability

of the Antebellum U.S. and the EU
This study develops a multi-faceted interpretation of the legal and political orders of
both the EU and the pre-Civil War American Republic in an effort to probe what makes
them viable or not. In so doing, it contrasts three ftindamental differences in how the rules
of the game were contested in each political system: American dual federalism (with the
highest functions of government) vs. European joint federalism (with the most numerous);
a Constitution for popular government vs. a treaty system; and, a majoritarian party sys-
tem vs. Europe's fragmented politics of integration.

American Dual Federalism (with the highest

functions of government) vs. European Joint rederalism
(with the most numerous)
Theorists of American federalism describe the original Republic as founded on the prin-
ciple of "dual federalism."^ The result was two separate levels of government whose con-
28 VOLUME 84, NUMBERS 1 & 2

flicts took the form of legal disputes about respective powers and compliance between state
and federal law. States waged a juridical and political struggle to protect the autonomy of
their sphere of government. The first amendment to the Constitution after the Bill of Rights
was the product of Georgia's stubbornness in refusing to accept the 1793 U.S. Supreme
Court ruling (Chisolm v. Georgia) that federal courts could hear creditors' suits against a
state.* This protest succeeded in persuading Congress to pass an amendment granting each
state sovereign immunity against suits in law and equity by citizens of other states.
Another area of dispute in the early American Republic was the use of nullification to
declare acts of Congress invalid if state legislatures deemed them unconstitutional. The two
great nullification controversies concerned the Alien and Sedition Acts' restriction of civil
liberties in 1798 and South Carolina's hostility to the imposition of tariffs on imports of
manufactured goods in 1832. In the first case, Kentucky and Virginia upheld the right not to
comply with these federal laws, claiming, in effect, a veto over what both states viewed as
an unconstitutional extension of federal sovereignty.' What was at stake was less the abstract
principle of who had the power to determine powers than a struggle over a particularly
unwelcome extension of federal power in a certain domain for a specific purpose. Thus, the
sovereignty of the states, although a commonplace ideology - "almost everyone spoke of the
Union as 'our confederacy,' [and] of the Constitution as a 'compact'"* - was infrequently
invoked and not an active component of American constitutional government.
While the U.S. Constitution was ambiguous enough about certain elements of sover-
eignty to allow for a compact reading of the origins of federal power, it clearly enumer-
ated those areas of government that were the prerogative of the federal branch. These are
what the British jurist and historian James Bryce called "the highest" functions of govern-
ment,' covering intemational politics, trade, and defense. The states accepted this funda-
mental division of powers but sometimes believed it was necessary to protest when their
usage infringed upon what they saw as the letter of the Constitution. Unlike the American
Union, which was founded on the acceptance that the primary powers were reserved for
the central government, EU countries have, with difficulty, pooled the most numerous
ninctions of government rather than the highest. Intemational trade, agriculture, health
and safety at work, environmental protection, and consumer safety all come within the
compass of European law. In these areas, the European system of law calls for uniformity
to ensure the operation of a single market with common rules.'"
National vetoes in certain crucial areas - notably, tax and treaty reform - of the "first
pillar" dealing with economic, environmental, and social policy where decision-making is
ordinarily supra-majoritarian rather than based on unanimity, mean that the commands of
the EU are less likely to shock member states into non-compliance. In the other two pillars
- foreign policy and police and judicial cooperation - the EU can only act if it is granted
the capacity to do so by its members. Under the American system of dual federalism, the
federal government had the power to interpret the general good according to its own defini-
tion and to seek its own solutions for promoting it. The only state check on this was through
representation in the Senate. Conversely, the EU is constituted so that member states have a
say and a veto on what the European general good is supposed to be in the first place and
what action is called for. As a consequence, the European nations have deliberately sought
to avoid a confrontation akin to nullification, which is ex postfacto; they seek instead to rely
on a more powerful barrier against centralization." This is precisely because a unilateral
declaration of the Union's actions as ultra vires (beyond the powers) in both unions is accom-
panied by no mechanism for revision aside from a complicated amendment procedure.'^
INTERNATIONAL SOCIAL SCIENCE REVIEW 29

Under the EU's system of joint federalism, member states are constantly in a position
of having to veto a proposed extension of powers, changes to the rules for decision-mak-
ing, or requests for greater financial resources. Thus, their power of supervision is acute,
active, and continuous. The evolution of the rules of the game of integration invariably tied
the expansion of the EU's potential powers to a new framework for retaining national
control. Among the best examples of this process, referred to as dynamic equilibrium, are
the creation of a new decision-making framework based on unanimous consent for foreign
policy found in the Maastricht Treaty (1992) and the proposal in the 2007 Lisbon Treaty
to give national parliaments a veto on EU-level agreements to abandon the unanimity
principle in certain policy areas. There is, moreover, an ingenious catalogue of opt-outs
and protocols whereby member states are granted either the right not to participate in a
certain EU policy (e.g., the common currency or the open border agreement known as
Schengen Treaty) or the right to preserve their autonomy in certain decision-making areas
(notably, abortion laws in Malta and Ireland, as well as Denmark's provision for indepen-
dent social and environmental protection standards). In this way, European countries have
found a fuzzy middle ground between granting powers and surrendering the highest func-
tions of govemment to the EU.
The evolution of federalism in America did not necessitate the creation of new institu-
tional or decision-making procedures for building consensus. The fact that this could be
done using the existing government framework proves the importance of how federal and
confederal tension over powers is settled, namely, through parties, popular mobilization,
and new institutional rules. In the EU's joint system, this tension is managed by increasing
the procedural probabilities of consensus, while allowing for safeguards against unwanted
expansion of power.'' This means that the EU's ability to issue authoritative instructions
regarding uniform laws in the first pillar is not necessarily an indicator of a nascent strong
state as some have interpreted it.''' Rather, the ability of a weak center to act in this way to
harmonize large swathes of legislation is to a great extent the product of its joint federal
structure, which promotes consensus and leaves open alternative means of resistance.
The absence of an initial agreement over the division of powers thus makes the contest
over the rules of the game of politics in the EU quite different from that in the early
American Republic. The American states occasionally exercised what they considered to
be their right to interpret the limits of federal power, whereas EU member states partici-
pate in a constant debate over what further powers are to be delegated. In the early
American Republic, the futility of nullification as a means for changing the relationship
between both levels of govemment was soon learnt and led eventually to the use of a threat
of secession instead. With few options for directly moulding the agenda of Union politics
to fit their preferences, recalcitrant states came to see the threat of withdrawal as the best
way of showing their hostility toward certain federal policies. The fact that the threat of
exit is absent from mainstream politics in every EU member state and has never been used
as a negotiating tactic by a govemment indicates the extent to which those states feel
confident in their grip over the direction of integration. This is particularly striking given
that the EU is a treaty system, which implies an unequivocal possibility of revocation.
Expectations about conflicts over powers are, therefore, a vital part of the struggle over
the rules of the game in the EU as they were in the antebellum United States. European
leaders understand the logic of ever closer Union - whereby once granted, powers cannot be
reclaimed" - and operate with the knowledge that no pan-European party system has
emerged, nor does it seem likely in the near future, to resolve this tension between federalist
30 VOLUME 84, NUMBERS 1 & 2

(those who believe in greater EU powers) and confederalist (those seeking the retention of
national sovereignty) tendencies. Conversely, in the United States the expectancy arose after
Washington's presidency that political parties would become the front line of such tension.
Whereas national popular mobilization and debate became part of the attempt to solve dis-
putes over power and the very role of the Union in the United States, in the EU popular
engagement serves to complicate such disputes because referendums can lead to a show of
hostility towards integration. Even if successful, referendums may fail to answer important
questions about integration as campaigns often insist upon the economic growth potential of
integration and play up fears that non-integration will prove costly for the economy.
Not only does this context make European states more hawkish about protecting their
prerogatives, it also opens up more avenues for compromise. This allows member states
to find common positions without conceding more than the most hesitant country allows.
This is one of the reasons why the process of dynamic equilibrium prevails over voluntary
centralization. The next section will show how the treaty system on which EU powers are
based is another crucial factor promoting a dynamic equilibrium. This is because the
treaty sfructure greatly hampers popular political mobilization in favor of the EU.

A Constitution for Popular Government vs. a Treaty System

In the EU, international treaties are the means by which policy powers are granted to
that government and new rules are devised to allow for potentially more European-level
decision-making. In contrast, the United States was founded on a constitutional political
order. This difference has far-reaching consequences for how popular mobilization can be
employed to support voluntary centralization in each Union.
In the absence of a formal constitution and "constitutional moment" of pan-European
participation, it is almost impossible to sustain any fiction of a social contract that links
European citizens, either individually or collectively, to the integration process. Individual
consent, even of the most tacit kind, is not part of the edifice of European government, where
all important decisions are filtered through representatives of the national governments.
Inter-institutional compromise between the Council of Ministers, representing national gov-
ernments, and the European Parliament, which is elected by citizens, is the order of the day
for less confroversial subjects. This minimizes the impact of the European Parliament, which
has the best claim to being able to link policy to popular consent. In any case, voter turnout
is dreadful: under twenty percent in Slovakia's first-ever European elections is but one exam-
ple.'* The insignificance of democratic participation in eventual policy choices is the reason
for academic attempts to justify the EU system on other grounds, most notably from the
policy outputs it produces rather than the democratic inputs it receives." Indeed, it is even
argued that since the EU is not a nation-state with an extensive set of powers the deficit of
democratic participation should not be of such paramount concern.'*
Originally, the electoral basis of the American president was intended to preclude the
possibility that the head of the federal government could be tied to the majority of indi-
vidual preferences." Nevertheless, in the early American Republic it was still possible to
invoke a collective fiction, a first person plural pronoun (best symbolized by the phrase
"we hold these truths to be self-evident" in the Declaration of Independence) that
expressed a common desire to pursue a political project together. This notion of a collec-
tive granting of authority - rather than the acquiescence of each state - to create the Union
was famously used by US. Supreme Court Chief Justice John Marshall to explain the
INTERNATIONAL SOCIAL SCIENCE REVIEW 31

origins of the federal government in McCulloch v. Maryland (1819).^° Thus, even if the
federal government lacked the ability to determine its own powers - amendments required
the approval of three-quarters of the states - sovereignty could at least be plausibly
located in the people instead of in the states collectively.
Popular legitimacy was not restricted solely to the era of the founding of the American
Republic. The development of mass politics during the Jacksonian era (1824-48) effected
a connection between executive government and the people. In spite of the Founding
Fathers' designs to create obstacles to populist presidentialism, by the time Andrew
Jackson occupied the White House he was able to claim, in his proclamation regarding the
nullification crisis, that "we are ONE PEOPLE in the choice of the President and Vice
President."^' Jackson was deliberately cavalier with the electoral reality of presidential
elections: in 1824 he himself had won a relative majority of both the Electoral College and
the popular vote but still lost that election to John Quincy Adams. However, he was correct
in his assertion that the electoral mechanism provided for a strong representative bond
between the president and the people. The will of the states, as Jackson realized, did not
carry the same influence since Electoral College votes were weighted according to popu-
lation. Moreover, the existence of a nation-wide party system for mobilizing public opin-
ion and participation prevented the states from acquiring a monopoly over agenda-setting
and speaking in the name of the people. By mid-century, the practice of American politics
was much less anti-majoritarian than the Founding Fathers anticipated, thereby establish-
ing the conditions for the eventual "radical nationalization of the political process"" that
occurred in the twentieth century.
Such a feat of collective, cross-national representation is impossible in the present EU
polity. The legitimacy of EU policy is only indirect and certainly not pan-European: none
of its commissioners are elected; the members of the Council of Ministers as members of
national governments are elected principally for national representation, whilst the
Parliament, whose members are drawn from the ranks of national parties, is a dull side-
show to domestic political debate. Since national and European electoral cycles are out of
kilter, there is also little possibility of having a majority of both member state governments
and of members of the European Parliament belonging to the same political family."
These democratic drawbacks are more than well-known; they are part and parcel of the
lament about a deficit of democracy,^" for which the most commonly-proposed solutions
are enhancing EU powers to ensure greater public and party interest in European
Parliament elections, and stimulating the development of transnational political participa-
tion." The EU's treaty system thus denies it the ability to use mass democratic mobiliza-
tion, which stems from an electoral mandate to govern, as a political resource in its strug-
gle against member-state reticence.
In the absence of a mechanism for direct and continent-wide popular participation in
European government, certain member states have resorted to trying to endow the foun-
dational moments that are treaty negotiations with popular legitimacy through referendum
ratification. For example, Ireland is obliged by constitutional law to hold a referendum on
any new EU treaty. When a referendum is used, however, the terms of the debate are
national as what matters is the acquiescence ofthat particular country's electorate and the
reasons for voting in favor can vary considerably from country to country.^* This variation
between member states in the justification for closer Union adds to the problem of iden-
tifying a common goal for European construction that has been clearly mandated by a
majority of European citizens.
32 VOLUME 84, NUMBERS 1 & 2

Popular, pan-European mandates, therefore, whether for governing or for treaty nego-
tiation, are not possible in the current EU treaty system and there is an expectation that
this is unlikely to change for a long time. As such, the chances of pursuing supranational
integration against the wishes of one or more obstreperous member states on the basis that
it carries the support of the majority of European citizens are very slim. This sets the EU
apart from the United States, where the centralization of the Union has invariably corre-
sponded to a mobilization of the majority."
In its efforts to overcome this impasse, the EU, as political scientist Stefano Bartolini
explains, has tried top-down institutionalization of "what are for the moment somewhat
artificial channels and forms of representation, electoral (the Parliament and European
political parties), territorial (regions and local government) and interest-based ('commi-
tology', networks, epistemic communities)."^* The marginalization of the European
Pariiament despite an increase in its powers and the failed attempt to find an alternative
- the 2002 Convention on the Future of Europe that produced a draft constitution, which
was promptly filleted by member states - to inter-state negotiation of treaty amendment
support Bartolini's theory about the artificiality and ineffectiveness of the proxies for
political representation cultivated by the EU. The failure of this strategy for building
political legitimacy beyond the participation of member states is an additional constraint
on any attempt at justifying and succeeding in carrying out voluntary centralization.
This analogical comparison between the American constitutional system and the EU's
treaty framework illustrates how the latter is deficient when it comes to grounding in popu-
lar consent an extension of federal powers or a dispute against the assumed prerogatives of
member states. A pro-EU popular constituent power that could legitimize a new European
constitutional order, although a holy grail for many integrationists, is not congruent with the
diplomatic, country by country process of negotiation and ratification of treaties.
Yet the treaty method is far from devoid of advantages with regard to the maintenance
of a dynamic equilibrium. In the European case, the treaty system has so far never been
static; it is a dynamic process subject to ongoing speculation, negotiation, and revision.
Since the 1992 Maastricht Treaty, "there has been, in effect, a semi-permanent revision
process, whereby one revision already contained the seeds of the next one."^' Given the
commitment to an "ever closer union," the ceaseless striving for a renegotiated settlement
ensures that these moments are always discussions about how far to move forward with
integration. Treaty amendment in the EU knows of no reverse gear as member states have
never successfully reclaimed legal powers or reduced the budget.^"
There is also an inherent pressure to forge ahead with a proposed treaty rather than
derail negotiations even when there is a ratification setback. This was the case after the
Danish "no" referendum on Maastricht, which was immediately followed by a meeting of
the twelve European foreign ministers who ruled out any treaty renegotiation.^' A similar
pattern of a country having to vote twice on the same treaty occurred in Ireland, which
ratified the Nice Treaty in 2002 following a failed first attempt one year earlier." Finally,
the demise of the 2005 Constitutional Treaty, which was rejected by both French and
Dutch voters, did not signal the enshrinement of the existing treaty arrangement. Europe's
political elite preferred to recycle the document in a new form - the Lisbon Treaty - with
the understanding that member states would not subject it to referendum votes rather than
stick to the clumsy provisions of the Nice Treaty." Thus, the pressure for continued treaty
renegotiation exists despite the fact that the Vienna Convention on the Law of Treaties
stipulates that states cannot be forced to become parties to agreements that they have not
INTERNATIONAL SOCIAL SCIENCE REVIEW 33

ratified.'" In this curious fashion, therefore, the EU's consensus-building politics is capa-
ble of making the status quo evolve despite a negative referendum.
Furthermore, the prospect of adding new members to the EU complements semi-perma-
nent amendment negotiations since enlargement can be used to remedy blockages in con-
sensus-building that threaten the coherence of the EU system. For example, U.K. accession
was used to resolve the wrangling over financing the European budget once the Common
Agricultural Policy had been established. The prospect of Spanish and Portuguese member-
ship a decade later made it imperative to placate British Prime Minister Margaret Thatcher's
fury over excessive U.K. budget contributions. Amended treaties also serve to craft agree-
ment on new projects of pooling sovereignty at times of uncertainty about where integra-
tion is heading. UK. entry coincided with the launch of foreign policy co-operation and an
agreement to begin economic and monetary union. Spanish and Portuguese enlargement
marked the retum (for the sake of completing the single market) of the non-unanimous
voting procedure known as Qualified Majority Voting, which had been abandoned after
France's refusal in 1966 to abide by such a procedure. The Maastricht Treaty established a
common foreign policy with the expectancy of new post-Cold War members in mind. And
the Lisbon Treaty seeks to link the significant expansion of the EU in 2004 with a single
document of rules, allowing for the possibility of more common decision-making."
The process of negotiating further integration of policy powers alongside a widening
of membership provides an opportunity for each member state to express and defend its
interests in order to seek ways of reconciling them with the extension of powers, new rules
of decision-making, or new policy goals. Whereas constitutions founded on a central
compromise try to prevent discussion of a taboo, treaties subject to ongoing revision can
be more flexible instruments for finding ulterior compromises as long as they are based
on a principle of dynamic equilibrium.
During the antebellum period, the slavery problem required the establishment of new
compromises as each episode of territorial expansion re-awakened the vexing question of
extending slavery. Owing to the "three-fifths clause," whereby a slave counted for the
purposes of representation by population as three-fifths of a freeman, American political
institutions (the House of Representatives and the Electoral College) bore a permanent
over-representation of slave-holding states designed to prevent a questioning of the legal
status of slavery by the Union. Once population expansion in the free states greatly out-
stripped that in the South, the latter had to cling to its Senate veto, which only held if there
were at least an equal number of free and slave states. As territories continued to apply for
statehood, the American Union found it increasingly difficult to reinvent a compromise on
slavery because the North resented the original concessions to the slave power and the
South sought to maintain its power base. As a consequence, the issue of slavery refused to
disappear conveniently under a veneer of expedient agreement.'* This is not true of the
process of European integration, in which the original bargains over powers, institutional
decision-making, the budget, and foreign policy have evolved without having to settle
decisively the tensions underlying this struggle over the rules of the game of EU politics.
The foregoing analysis is not meant to portray the EU's treaty system as an inexorable
means of furthering dynamic equilibrium, although hitherto it has succeeded in achieving this
against considerable odds. In fact, the viability of reworking the compromises between fed-
eralist and confederalist visions, fiee market neo-liberals and promoters of social rights, and
NATO backers and advocates of an independent European defense policy is now more open
to question than before. This is because the enlargement process itself is running out of steam.
34 VOLUME 84, NUMBERS 1 & 2

both as the number of realistic prospective entrants dwindles and the policy of enlargement
itself becomes far more controversial among European citizens. Since expansion has in the
past always presented itself as an opportunity for persuading member states to reconsider the
existing rules of the game of politics, the abeyance of this process could mean a stagnation of
integration. Moreover, the failure to adopt the Constitutional Treaty according to its original
schedule also marks a fundamentally negative precedent whereby widening (the process of
adding members) has failed to be associated with deepening (increasing EU powers), suggest-
ing that the dynamism of the past has run out of momentum. Yet at the same time, the initial
failure of the Constitutional Treaty may not be such an obstacle to reworking old compro-
mises. Institutional re-design, budget priorities, and policy powers have remained squarely on
the reform agenda in spite of the two negative referendums; the quandary was simply refor-
mulated into what can be salvaged from the treaty and how. Precisely the same response has
been adopted in light of the Irish referendum rejection of the Lisbon Treaty in June 2008,
whereby Irish voters may have to vote on the same treaty a second time.
Europe's treaty system for changing the rules of the game of politics, which leaves little
room for popular consent, negates James Madison's fears about the balefiil effect of a fre-
quent revision of constitutional rules. In response to Thomas Jefferson's argument that each
generation must give its sanction to the social contract that is the Constitution, Madison
fretted that "such a periodical revision [would] engender pemicious factions that might not
otherwise come into existence."" Perhaps Madison was not misguided in his judgment
when it comes to unitary states and constitutionally organized polities as the frequency of
constitutional re-writing is typically a tell-tale sign of weakness. Nevertheless, in the EU
system, frequent amendment of treaties has compelled factions (pro and anti-integration-
ists, free market liberals and partisans of economic intervention, NATO stalwarts and pro-
ponents of European defence) deprived of a popular mandate to co-operate with one
another. Consequently, ambitious projects for a fortified EU have lost out in favor of an
incrementalist process of treaty revision. Fundamental compromises have been re-exam-
ined but never settled outright, leading to dynamic equilibrium over the rules of the game.
This emphasis on checking and compromising is exactly the paramount virtue that
John C. Calhoun, the leading theorist of American states' rights in defense of slavery dur-
ing the antebellum period, thought he saw in the U.S. constitutional system. According to
Calhoun, "it is, indeed, the negative power which makes the constitution - and the positive
which makes the govemment. The one is the power of acting; - and the other the power of
preventing or arresting action. The two, combined, make constitutional governments."'* It
was the surreptitious development of a majoritarian party system that undermined the
Calhounian dream - something that has little chance of happening in the EU.

A Majoritarian Party System vs. Europe's

Fragmented Politics of Integration
The American party system was conceived and developed outside the framework of the
Constitution. Originally it was thought that the Supreme Court would be the arbiter in the
predicted struggles between different levels of govemment over jurisdictional powers.
Constitutional amendment was considered the other possibility for settling scores as the
American Republic developed, yet in practice, as described earlier in this study, this device
could almost never be used. The party system was very much unwanted and arose origi-
nally only as an unintended consequence of the struggle amongst the political elite to define
INTERNATIONAL SOCIAL SCIENCE REVIEW 35

the proper extent of federal powers. Thereafter, the story of antebellum American politics is
one in which the most acute disputes over the rules of the game - those arising from the
slavery question, which re-emerged at each moment of territorial expansion - were largely
conducted outside the jurisdiction of the Supreme Court, with the notable exception of the
Dred Scott decision (1857). Moreover, given the institutional hurdles to constitutional
amendment, individual states found it most difficult to frustrate federal power. Hence it was
left to parties and party systems to fry and resolve fractious issues. This is why the Civil
War marks such a caesura in U.S. political development. As historian Forrest McDonald
puts it, the "truly revolutionary consequence of the Civil War and Reconstruction, one that
was entirely unforeseen, was the general public's acceptance of the idea that the [Supreme]
Court was the sole and final arbiter of constitutional controversies."^' After 1865, the judi-
cial arena became the principal stage for negotiating problems of federal powers.
Prior to the Civil War, as sectional antagonism grew in intensity with territorial expan-
sion, political parties attempted to mobilize a wider and wider public over the politics of
the Union. Owing to a series of changes in democratic practices in the first quarter of the
nineteenth century, the politics of the American Republic tended increasingly towards
majoritarian principles at the federal level. The basis of political representation thus shifted
away from the individual states as political debate gravitated around the Union, whilst the
existence of a deep-rooted and fundamental minority/majority cleavage that re-emerged
with each period of territorial expansion made it harder to reconcile both antagonists.
Several significant developments in the democratic practices of the American Republic
occurred in the period leading up to the Civil War. These were notable for breaking up the
aristocratic elite's monopoly on office-holding and for transforming the contest for the
executive into a competition for the popular vote more than an indirect election of the most
suitable candidate by those who should know best. Popular sovereignty became the leit-
motiv of the Union via the expansion of the franchise - states determined who could vote
and in the first two decades of the nineteenth century "the American electorate underwent
sweeping change""" thanks to the reduction and removal of property and tax requirements
- and through a change in the method for selecting Electoral College voters."'
In 1804, eight of the seventeen states provided for the direct election of presidential
electors; by 1824, only six out of a total of twenty-four did not allow for direct election.
By 1828, only Delaware and South Carolina had not followed suit. As a consequence, state
legislatures lost control over the selection of presidential electors, enabling politics to
become more populist and national. As the parties in the post-Jacksonian era organized to
mobilize political support they turned the election of presidential electors from one based
on congressional disfricts to a winner-take-all principle so that the winning candidate
received all the Electoral College votes instead of a proportion.''^ This made it much eas-
ier for a candidate to win a landslide of states' Electoral College votes with only a rela-
tively small percentage of the popular vote. To cite one example, in 1860 "Lincoln
received 98 percent of the North's electoral votes although he won only 54 percent of the
popular vote in the free states.""^
With these democratic developments the office of the presidency became the scene of
hotly-contested elections pitting rival parties and candidates against one another in a race
for to win enough Electoral College votes across the Union. Another reason for the impor-
tance of establishing party control over electoral politics and the federal government was
the difficulty states had in reining in their own representatives in the Senate. Bicameralism
was supposed to be, according to the Federalist No. 62, "a constitutional recognition of
 36 VOLUME 84, NUMBERS 1 & 2

the portion of sovereignty remaining in the individual States and an instrument for pre-
serving that residual sovereignty.'"^ But, as political scientist William Riker notes, state
legislatures, the bodies originally responsible for electing senators, lacked the ability to
instruct their own representatives.'*^ Whereas the Articles of Confederation allowed states
to recall their delegates, meaning that instructions could be enforced by effective sanction,
the Constitution did not provide any such mechanism.
Naturally, state legislatures - especially those in the South - sought substitute sanctions
against disobedient senators. The only successful alternative was forced resignation,
which states could hope to achieve by creating a furor if their senator voted against their
perceived interests. Yet the divergent terms of office made such a method ineffective
because "resignations were not easily forced when senators sat for six years, state legisla-
tors for one or two.'"** Love of office generally prevailed over pride as senators could hang
on to office and await re-election knowing the composition of the state legislature would
have changed in the interval.
Furthermore, in the age of Jacksonian democracy, senators began canvassing voters
rather than state legislators for support even though only the latter could elect representa-
tives to the Senate. In effect, would-be senators were urging voters to elect state legislators
who, in turn, would back them in the senatorial race. This canvassing complicated the
power relationship as it meant that "each state legislator then owed his office less to his
own merit and more to the merit of the candidate for the Senate with which he was
aligned. As a result, senators earned gratitude as much as they owed it.'"" Thus, without
direct state control over the votes of senators, the Senate became susceptible to a central-
izing tendency courtesy of party organization.
Thus, a great deal of voluntary centralization had occurred in the early American
Republic by the mid-nineteenth century. It was not the powers of the U.S. federal govern-
ment that had changed dramatically, although its prestige and authority were greatly con-
solidated. Rather, the political life of the Union had been centralized through changes in
democratic practices. Under the impulse of democratic reforms - in keeping with the notion
of freedom enshrined in the Republic's foundational moment - election campaigns, actors,
and, most importantly, issues, were gradually centralized around the capital, replacing those
institutions such as the Electoral College and the Senate that had originally been intended
to preserve the states as the dominant actors in an American political sphere inhabited by
notables. Democratic populism broke the stranglehold of both the notables and the states.
As a result, states were stripped of their control over agenda-setting and their ability to veto
or frustrate legislation was greatly diminished. Thus, the rules of the game changed not in
terms of powers and understanding of the role of government but thanks to a change in the
procedures of political decision-making and participation, which, in turn, affected the unit
of representation. The unit of representation for mobilization of the electorate and political
debate became the Union as a whole rather than its separate political units.
It was under these new conditions that American political parties sought to rise to the
challenge of winning votes on a national basis. Given the size of the Southern minority,
in the second party system politicians and party leaders realized that the simplest way to
win the vote meant finding a platform that could transcend the divide between free and
slave states. Both the Democratic and Whig parties were intersectional alliances that
promised to respect and preserve slavery. Thus, when it came to protecting states' interests
party discipline became a substitute for state instruction. The American case proves, there-
fore, that voluntary centralization can co-exist with dynamic equilibrium in a union of
INTERNATIONAL SOCIAL SCIENCE REVIEW 37

States. This proved to be a very volatile admixture, however, as centralization was resisted
by violence when the party system failed to maintain the dynamic component and there
appeared to be no way of finding an alternative intraparty compromise over slavery.
Unfortunately, there is no space here to tell the story of the party system's failed
attempt to re-invent a compromise over the tension between the South's desire to extend
slavery and the North's determination to contain it. It is enough to state that the party
system was brought to its knees not as a result of competition between the two parties but
from internal weaknesses that spelled the end of their collusion to keep the issue of slavery
oflFthe table of party competition.''* After Lincoln won the presidency in 1860, carrying a
clear majority in the Electoral College with only 39.9% of the popular vote. Southerners
realized that the game of contesting the status of slavery according to the rules and institu-
tions of the US. Constitution was up. Even before Lincoln's inauguration, seven states of
the Deep South seceded from the Union. The fact that secession occurred as a result of
expectations that Lincoln and Southern slavery would be incompatible shows that by this
stage the American Union was no longer viable. It could no longer find a dynamic equi-
librium to reconcile the interests of Northerners and Southerners alike.
Since the struggle over the rules of the game in the EU has already been addressed in some
detail in the previous section only a few broad remarks pertinent to the contrast with the
American party system will suffice here. Against the backdrop of European integration, party
systems mobilizing European citizens on the basis of Eurocentric political debates have not
developed to negotiate struggles over the rules of the game of the EU. Rather, these struggles
have taken place during treaty negotiations, where member states have retained control of the
political agenda, notably when it comes to the attribution of powers and understanding of the
purpose of integration. Against expectations, national referendums on treaties have not func-
tioned as democratic devices either for transcending the nation-state as the basic unit of
political representation or for opening up a pan-European debate on what the EU represents.
In the day-to-day exercise of power, the Council of Ministers, which regroups the rep-
resentatives of national governments, has been vigilant not to lose the ability to contest the
rules of the game, either by retaining the veto or relying upon the consensus-building pres-
sure inherent in the institutional design. This can be seen by the absence of disputes like
nullification or secession, which obviously signal the frustration born of the impotence of
those who believe they cannot influence the rules of the game of politics. Finally, the
system of national representation in the Council of Ministers (the most powerful decision-
making institution) has not withered like the representation of state interests in the U.S.
Senate. The sanctioning mechanism of domestic politics ensures that ministers and gov-
ernments do not forsake the preferences of national parliaments and public opinion in
favor of stances considered too pro-European. The member states and their citizens have
thus retained a strong prerogative over how the rules of the game are contested, both at the
foundational level (treaty amendment) and in the process of EU government. Consequently,
the EU's fragmented political system has avoided the centralization and majoritarianism
that emerged in the early American Republic.

Conclusion:A Half-Way House, the Only

Context for EU Viability
So far, the 'viability debate' in EU studies has been conducted from two perspectives.
One approach tends to deliver perfunctory dismissals of further European integration
38 VOLUME 84, NUMBERS 1 & 2

because of certain missing social and political "preconditions" necessary for a more fed-
eral organization. The other is convinced that the EU's limbo position between intema-
tional organization and federal state is, by definition, a structural anomaly that cannot be
maintained. The former approach, which identifies the deficiencies in Europe's proto-
federal momentum, explains what the EU cannot become; the latter, which advocates
greater deepening, suggests that it has to become more federal.""
Investigating three crucial differences in how the EU has remained viable in compari-
son to the early American Republic's travails yields a third interpretative paradigm for
understanding how the EU functions best and the possible limits of integration. This study
suggests that the EU is viable as a halfway house between federation and confederation
not only because of its structural problems of mobilizing democratic legitimacy to enable
citizens to determine what kind of integration is warranted. Equally important, the EU's
hybrid supranational (federal) and intergovemmental (confederal) structure depends on
the establishment of an ongoing compromise that favors dynamic equilibrium over volun-
tary centralization. It is precisely this ability to find a compromise satisfying both integra-
tionists and their opponents that is jeopardized when this tension is forced to take center
stage and becomes subject to resolution by democratic majority.
One significant element with the potential to destabilize this arrangement is the impact
of judicial politics, a subject that lies largely outside the scope of the present analysis but
whose existence must be acknowledged. In the process of becoming a union of states, the
creation of an impartial arbiter to settle disputes between the separate political units and
the Union is a vital component of the political system. However, as political scientist John
Kincaid points out, "the acceptance and legitimacy of an independent judiciary in demo-
cratic nation-states is premised on the existence of a constitution or fundamental law
grounded in popular sovereignty."'" In the EU, this link between judicial independence -
crucial when judges are to rule on sovereignty or powers issues - and popular sovereignty
is entirely indirect. EU treaties are ratified by the representatives (and sometimes the
people) of each member state whilst day-to-day decision-making undertaken in accor-
dance with treaty powers requires complex consensual negotiation between different
institutions with different principles of political representation.
The early American Republic was also characterized by the absence of a mechanism
for connecting judicial decision-making with popular sovereignty but, as noted earlier, the
Civil War endowed the Supreme Court with popular legitimacy for adjudicating conflict
between the state and federal level. Similarly, the jurisprudence of the European Court of
Justice, which determines the sometimes opaque boundaries between nation-state and EU
powers, is liable to prove highly pertinent to the question of future EU viability. Even if
EU member states have hitherto acquiesced to this court's rulings," this constitutes no
guarantee of a lasting and stable order. This is especially true if the European Court of
Justice is called upon to adjudicate in more sensitive areas such as the compatibility
between national collective bargaining agreements for wages and the principle of free
movement of labor for all EU citizens.
The early American Republic failed despite the fact that the contest over the rules of the
game became both more centralized and majoritarian as the agenda and practices of political
life migrated from the states to mass parties representing citizens from across the states.
Individual states and their citizens could not veto policies and found it nearly impossible to set
the agenda of Union politics, thus creating a great incentive to come together nationally. This
fit neatly with the American creed of popular sovereignty, but the party system could not
INTERNATIONAL SOCIAL SCIENCE REVIEW 39

maintain a dynamic equilibrium between the single cleavage - which polarized the early
American Republic into a clear majority and minority - that divided the states geographically
and which was, therefore, translated into political representation at the Union level.
Conversely, the EU appears to have remained viable according to a logic of dynamic
equilibrium precisely because it has avoided the centralization of the contest over the rules
of the game by remaining resolutely anti-majoritarian. By preventing a direct, pan-Euro-
pean democratic confrontation between integrationists and euro-sceptics, which means
that neither can claim to have definitively won the argument over the future of Europe, the
EU's member states have successfully defused this fundamental cleavage over what that
organization should be. Thus, the evidence from the American experience implies that the
EU should be more cautious with its strategy of shifting politics away from the domestic
level to a democratic pan-European one. A reorganization of the EU polity to make the
contest over the rules of the game take place at the European level - by reinforcing the
European Parliament and tuming the Council of Ministers into an upper chamber as is
often subject to discussion - is likely to polarize the existing cleavage over integration,
thereby rendering a consensus over the rules of the game impossible.

ENDNOTES
'Jeremy Rifkin, The European Dream: How Europe's Vision of the Future is Quietly
Eclipsing the American Dream (Oxford: Polity Press, 2004), 6.
^See the epilogue of Walter van Gerven's The European Union: A Polity of States and
Peoples (Oxford: Hart Publishing, 2005).
'Quoted in Mikhail Filippov, et al... Designing Federalism: A Theory of Self-Sustainable
Federal Institutions (Cambridge: Cambridge University Press, 2004), 3.
••This contrast is thus an exploration of the similarity in the relation of the parts to the
whole in the contest to define the mies of the game of politics in both cases.
'The expression "co-operative," or "marble-cake," federalism is preferred nowadays as
it reflects the modern interlocking of federal, state, and municipal government.
'"Chisolm was a citizen of South Carolina and his suit was based upon a claim for the
delivery of goods to the state for which no payment had been made ... In deciding that
Georgia was subject to suit, the Court was rejecting the claim that the state was vested
with the traits of sovereignty. As to the purposes of the Union, to repeat the declaration of
Justice Wilson, 'Georgia is not a sovereign state.'" Bernard Schwartz, A History of the
Supreme Court (New York: Oxford University Press, 1993), 20-22.
'As the Kentucky resolution of December 10, 1798, affirms, the United States is a
compact in which certain precise powers are delegated but with each state reserving "the
residuary mass of right to their own self-government; and that whensoever the general
govemment assumes undelegated powers, its acts are unauthoritative, void, and of no
force." http://www.constitution.org/cons/kentl798.htm (accessed May 26, 2006), 1.
'Kenneth Stampp, "The Concept of a Perpetual Union," Journal of American History
65, no.l (June 1978):28.
'"In the partitionment of governmental functions between nation and state, the state
gets the most but the nation the highest." James Bryce, The American Commonwealth
(London: Macmillan, 1888; reprint, Indianapolis: Liberty Fund, 1995), 378.
'"Deirdre Curtin, "The Constitutional Stmcture of the Union: A Europe of Bits and
Pieces," Common Market Law Review 30, no. 1 (February 1993): 17-69.
40 VOLUME 84, NUMBERS 1 & 2

"Certain member states, of course, are notorious foot-draggers when it comes to imple-
menting European directives or complying with European Court of Justice rulings. This
explains the creation of a regime of fines for non-compliance in the Maasfricht Treaty.
'^In fact, throughout the antebellum peroid, only one constitutional amendment
(the Eleventh, which resulted from the Chisolm case) followed a state's refusal to cooper-
ate with the Union. That amendment reads: "The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State."
'^Hypertrophied institutional proceduralism under the "codecision" provision, which
makes the European Parliament and the Council of Ministers co-legislators (a process of
that can include up to thirty different stages) in the first pillar, is another means of balanc-
ing federal and confederal legislative power. The purpose behind such interlocked deci-
sion-making is to prevent institutional hierarchy that undermines compromise.
'"See, for example, Leslie F. Goldstein, Constituting Federal Sovereignty (Baltimore,
MD: Johns Hopkins University Press, 2001).
'^See the table on increasing powers in Tanja Börzel, "Mind the Gap! European
Integration between Scope and Level," Journal of European Public Policy 12, no. 2 (April
2005):221-23. Hooghe and Marks point out that "formal rules may not capture the prac-
tice of policy in fields such as agricultural policy and cohesion policy where, arguably,
there has been some renationalization." Liesbet Hooghe and Gary Marks, "European
Union?" West European Politics 31 nos. 1 & 2 (January 2008):124nlI.
""European Parliament Turnout Trends, 2004," http://www.europarl.europa/elec-
tions2004/epelection/sites/en/results 1306/turnout ep/index.html (accessed March 17,
2009), I.
"See, notably, Fritz Scharpf, Governing in Europe: Effective and Democratic? (Oxford:
Oxford University Press, 1999).
'^According to political scientist Andrew Moravcsik, "if we adopt reasonable criteria
for judging democratic governance, then the widespread criticism of the EU as demo-
cratically illegitimate is unsupported by the existing empirical evidence." Andrew
Moravcsik, "In Defence of the 'Democratic Deficit': Reassessing Legitimacy in the
European Union," Journal of Common Market Studies 40, no. 4 (December 2002):605.
""The [Electoral] College was a clever device to avoid the plebiscitarian Presidency ...
since the President was supposed to gain the White House on the basis of his past service,
it was unthinkable for him to claim that his (nonexistent) 'mandate' allowed him to trans-
form his office into a functional equivalent of a third house of the legislature." Bruce
Ackerman, We the People: Foundations (Cambridge, MA: The Belknap Press of Harvard
University Press, 1991), 68-69.
^"Referring to the state conventions, special assemblies convened to debate and ratify
the Constitution, Marshall declared "from these conventions the Constitution derives its
whole authority. The government proceeds directly from the people.... The assent of the
States in their sovereign capacity is implied in calling a convention, and thus submitting
that instrument to the people. But the people were at perfect liberty to accept or reject it;
and their act was final. It required not the affirmance, and could not be negatived, by the
State governments. The [C]onstitution, when thus adopted, was of complete obligation and
bound the states." Quoted in Leonard Baker, John Marshall: A Life in Law (New York:
Macmillan, 1974), 595.
INTERNATIONAL SOCIAL SCIENCE REVIEW 41

^'Jonathan Elliot, Elliot's Debates (Washington, D.C.: Taylor & Mauray, 1836),
IV:589.
"Sergio Fabbrini and Daniella Sicurelli, "The Federalization of the EU, the U.S. and
'Compound Republic Theory': The Convention Debate," Regional and Federal Studies
14, no. 2 (Summer 2004):243. This expression refers to fundamental twentieth-century
developments, notably the direct election of senators, the imposition of the federal income
tax, and the New Deal, which created a federal government that intervened far more
directly in citizens' lives.
^'As political scientist Paul Magnette explains, "the Parliament could lean to the centre-
right at the same moment as the European Council is mostly centre-left, or vice versa.
Moreover, a European Commission President may witness the European Council gradu-
ally align to the centre-right as the result of national elections." Paul Magnette, "Vers un
changement de régime?" [Toward a Change of System?] in Genèse et destinée de la
Constitution Européenne: commentaire du Traité établissant une Constitution pour l'Eu-
rope à la lumière des travaux préparatoires et perspectives d'avenir [Genesis and Destiny
of the European Constitution : A Commentary on the Treaty Establishing a Constitution
for Europe in Light of the Preparatory Documents and Perspectives on Its Future], eds.
Giuliano Amato, Hervé Bribosia, and Bruno de Witte (Brussels: Bruylant, 2007), 1076.
^"Vernon Bogdanor, "The Future of the European Community: Two Models of
Democracy," Government and Opposition 21, no. 2 (April 1986): 161-76; Peter Mair,
"Political Opposition and the European Union," Government and Opposition 42, no. 1
(Winter 2007): 1-17.
"Philippe Schmitter, How to Democratize the European Union - and Why Bother?
(Lanham, MD: Rowman and Littlefield, 2000), 53-74.
^'See, for example, Giles Ivaldi's study of the 2005 French referendum on the EU
Constitutional Treaty: "Beyond France's 2005 Referendum on the European Constitutional
Treaty: Second-Order Model, Anti-Establishment Attitudes and the End of the Alternative
European Utopia," West European Politics 29, no 1 (January 2006):47-69.
"See Ackerman, We the People: Foundations, 266-94; Bruce Ackerman, We the People:
Transformations (Cambridge, MA: The Belknap Press of Harvard University Press, 1998),
207-54, 279-311. According to Ackerman, there have been three such constitutional
moments in American history: The Founding, Reconstruction, and the New Deal.
^^Stefano Bartolini, "Tra formazione e trascendenza dei confini. Integrazione europea
e stato-nazione" [Between boundary-building and boundary-breaking: European
Integration and the Nation-State], Rivista Italiana di Scienza Politica [Italian Political
Science Review] 2 (August 2004): 193.
^'Bruno de Witte, "Entry into Force and Revision," in Ten Reflections on the
Constitutional Treaty for Europe, ed. de Witte (San Domenico di Fiesole: European
University Institute, 2003), 213.
'"Seenöte 15.
''Mark Franklin, Michael Marsh, and Lauren McLaren, "Uncorking the Bottle: Popular
Opposition to European Unification in the Wake of Maasricht," Journal of Common
Market Studies 32, no. 4 (December 1994):455-72.
"Karin Gilland, "Ireland's (First) Referendum on the Treaty of Nice," Journal of
Common Market Studies 40, no. 3 (September 2003):527-35.
''Renaud Dehousse, "The Unmaking of a Constitution: Lessons from the European
Referenda," Constellations 13, no. 2 (2006): 151-64; Sebastian Kurpas, The Treaty of
42 VOLUME 84, NUMBERS 1 & 2

Lisbon: Implementing the Institutional Innovations (Brussels: Centre for European

Studies, 2007).
'••Bruno de Witte, "Treaty Revision in the European Union: Constitutional Change
Through International Law," Netherlands Yearbook of International Law 35 (2004):59.
''On U.K. accession and the budget, see Leon Lindberg and Stuart Scheingold, eds.
Europe's Would-Be Polity: Patterns of Change in the European Community (Englewood
Cliffs, NJ: Prentice Hall, 1970), 230. Regarding Spanish and Portuguese accession and the
budget, see Andrew Moravcsik, "Negotiating the Single European Act: National Interests
and Conventional Statecraft," International Organization 45, no. 1 (December 1991):34,
44. On the launch of common foreign and security policy, see Stanley Hofïman, "Europe's
Identity Crisis Revisted," Daedalus 123, no. 2 (Spring 1994): 1-23. Regarding the Lisbon
Treaty, see Kurpus, The Treaty of Lisbon.
'^For various efforts to resolve the issue of the extension of slavery into the territories
during the antebellum period, see Robert P. Forbes, The Missouri Controversy and Its
Aftermath: Slavery and the Meaning of America (Chapel Hill, NC: University of North
Carolina Press, 2007); Holman Hamilton, Prologue to Conflict: The Crisis and
Compromise of 1850 (Lexington, KY: University of Kentucky Press, 1964); Gerald Wolff,
The Kansas-Nebraska Bill: Party, Section, and the Coming of the Civil War (New York:
Revisionist Press, 1977); Peter B. Knupfer, The Union as It Is: Constitutional Unionism
and Sectional Compromise, 1787-1861 (Chapel Hill, NC: University of North Carolina
Press, 1991).
"James Madison to Thomas Jefferson, February 4, 1790, http://www.constitution.org/
jm/17900204 tj.txt (accessed May 26, 2006), 2.
'^Quoted in Murray Forsyth, Unions ofStates: The Theory and Practice of Confederation
(Leicester, U.K.: Leicester University Press, 1981), 121.
"Forrest McDonald, States' Rights and the Union: Imperium in Imperio, 1777-1876
(Lawrence, KS: University Press of Kansas, 2000), 224.
•"•Elaine K. Swift, The Making of an American Senate: Reconstitutive Change in
Congress, 1787-1841 (Ann Arbor, MI: University of Michigan Press, 1996), 99.
•"For attention to developments in national infrastructure that made national mass parties
"technologically feasible," see John Aldrich, Why Parties? The Origin and Transformation
of Political Parties in America (Chicago: University of Chicago Press, 1995), 106.
"^See William E. Gienapp, "The Political System and the Coming of the Civil War," in Why
the Civil War Came, ed. Gabor S. Boritt (New York: Oxford University Press, 1996), 87.
•»Ibid.
•"Alexander Hamilton, John Jay, and James Madison, The Federalist Papers (London:
Everyman, 1926), 316.
"^See William H. Riker, "The Senate and American Federalism," American Political
Science Review 49, no. 2 (June 1955):452-69.
••'Ibid., 460.
•"Ibid., 463.
"^As political scientist Richard McCormick has shovra, "intra-party tensions were
greater than the tensions between the two parties ... the inability of any national party
agency to exercise firm discipline made it all but impossible to restrain the inter-party
tensions." Richard McCormick, "Political Development and the Second Party System," in
The American Party Systems: Stages of Political Development, eds. William Nisbet
Chambers and Walter Dean Burnham (New York: Oxford University Press, 1975), 112.
INTERNATIONAL SOCIAL SCIENCE REVIEW 43

•"For a sample of the argument emphasizing the problem of missing conditions for a
more federal organization, see Larry Siedentop, Democracy in Europe (London: Allen
Lane, 2000). For a sample of the argument that advocates the necessity of becoming more
federal, see Alexander Treschel, "How to Federalize the EU ... And Why Bother?"
Journal of European Public Policy 12, no. 3 (June 2005):401-18.
'"John Kincaid, "Confederal Federalism and Citizen Representation in the European
Union," in Compounded Representation in Western Europe, eds. Christian Tuschoff,
Joanne Brezinski, and Thomas D. Lancaster (London: Frank Cass, 1999), 51.
"See Alec Stone Sweet, The Judicial Construction of Europe (New York: Oxford
University Press, 2004).