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EuroFEDERALISM(I) in the third Millenium - - or 1787 revisited?
Kevin Anthony Stoda
Texas A & M University

"I know that the term 'federation' irritates many Britons. But to date I have been unable to come up with another word. We do not wish to irritate anyone."  

-Joschka Fischer, 2000 

I. The Treaty on European Union (TEU) was formally signed by both foreign and finance ministers at Maastricht in 1992. Prior to this passage, one of the key issues that the intergovernmental committees had struggled over was how the EU should be described. Neill Nugent (1994: 65) relates that " both in terms of its character and the stage of evolutionary process [m]ost states wanted the word 'federal' included, and would have settled for a phrase which appeared in drafts where the Treaty was described as marking 'a new stage in the process leading to a Union with a federal goal'. The UK government, however, was completely unwilling to see 'the F word' appear in any form at all and in the political trading which occurred at the Maastricht summit this point was conceded to the United Kingdom and the reference to federalism was replaced." Why was this word federalism--to which the EU seems headed--waylaid by the British at Maastricht? Is such a federalism the same as what Americans know or is it something particularly European?--or does Eurofederalism have a common definition that American political scientists can agree upon, too?

Over the last two hundred fifty years, there have been several periods where federalism has soared and fallen as a framework solution to problems of heterogenous (and at times in even comparatively homogenous) frames of representation and governance. Charles Chatfield (1999), in"The Federalism Papers: Commentary on the History of Federalism", claims that the world is now in its fifth historical phase of federalism and federalist theory development. The first phase was quite ancient and dated to the Mosaic covenantal tribes of biblical times. The second phase, for Chatfield (1999:374), started in1787 with the American experiment, which was built upon a long history of British metropolitanism which "fostered multiple urban centers along the Eastern seaboard, all tied to" a British empire that was served by multiple jurisdictions. This second phase soon became more universalized as theorists, such as John Fiske in America, found that federalism lent itself to visions of European Empire reform and to the anticipation for a United States of Europe by writers such as John Seeley in Britain and Victor Hugo in France. In a third stage of federalism, which began with the end ofWW I and continued through the beginning of the Cold War in the late 1940s, three concepts of federation emerged as dominant but related. There was a pan- European movement, alia Aristide Briand, and two other strands of world federalism-one suggested by Clarence Streit's Union Now movement which aimed at a North Atlantic federation of democratic states and emphasized a federal nation constituting all world democracies while the other movement was supported by diverse leaders, such as Henry Stimson. Gen Douglas MacArthur, Edward Teller, Albert Einstein, and Cord Meyer (W ooley ,1999). All this occurred prior to the implementation of containment and during the six yearS(2) between the dropping of the A-bomb on Nagasaki and the Korean War. In the bipolar context of the Cold War, the European federation became most successful in what Chatfield designates as the fourth phase of regionalized federalism, exemplified in the NA TO alliances based on European constitutional changes which for the first time allowed for transfer of sovereign common defense powers--and later through European Union developments. Chatfield periodizes the current phase in federalism as a period when global federationism is once again of growing interest.

At the turn of this new century Joseph Baratta (1999:353) sees growth among federalist theorists in seeking to strengthen three bases of fundamental international political interests which reinforce global movement towards federalism. The older, traditional foci of balance of power, collective security and the rule of law are now being applied in three generally different new or renewed directions. In these developments are being revealed through trends toward:

( I) Cautious development of the state system, utilizing the United N ations as at present--but only when bilateral diplomacy must avail itself of services of multilateral diplomacy.

(2) A nonhierarchical system of perhaps one hundred international organizations, including a much more effective United Nations.

(3) A world federal governance, preserving the nation-states but providing a higher level of legislative, executive, and judicial authority, probably on the model of the emerging European Union.

At the global level today, according to Baratta, the second option, the non-hierarchical model for federalism is most preferred by statesmen and citizens. If Baretta is correct in his analysis of world federalist movements, the important point for the EU here concerns the third option while at the same time it must be comprehended that the world planners are already considering the European Union as an important federalist model-whether or not the United Kingdom or other Anglo-American political scientists and political economists consider it federal or not.

In the other hand, federalism has already often been proven to be of shaky design in other less democratically oriented Eastern European states. First, Tito's federal Yugoslavia began to splinter in the late 198Osjust ahead of the Soviet Union' self-dissolution. Then after the Soviet Union disappeared, the Czech and Slovak peoples quickly proceeded to peacefully dissolve the Czechoslavakian federation within a year. Nonetheless, many of these same Central and Eastern European collapses of federalism were immediately been followed by a turn around: These same nations are how ready to apply to and to join the European Union-which I hypothesize to already be a federal state. Proving or disproving this hypothesis is the focus of this paper.

Research and clarifications in this area are fairly important as resurgence in interests in both federalist and intra-regional governance are coming at a time when neo-liberalist approaches to capitalism dominate the political-economic markets on the world stage--under the umbrella of a somewhat nebulous concept known as globalism. Dependency theories of state building, whereby states had sought to break away from the chains of global/imperial capitalism and had led subsequently to acknowledgement of the great North-South as well as an East-West divide in the 195Os and 196Os, are no longer dominant in most corners of the globe. Gradually, the anti-colonial or break-the-chains anti-capitalism mind-set of the mid- 2Oth century was overawed by at least three major developments:

First, the arrival of the so-called East Asian Tiger economies who had so successfully followed the Japanese corporatist development policy models.

Secondly, many southern OPEC nations had successfully unified and subsequently cowed the advanced industrial nations with oil price shocks on several occasions. Lastly, with the demise of communist-socialism, a viable alternative development strategy to globalism has seemingly disappeared.

In the meantime, federalist or confederalist regimes, international organizations, and agreements, like NAFT A in North America and Mercosur in South America, are being seen around the globe as appropriate structural strategies for nations and peoples to follow in the context of global competition and inroads spearheaded by the creation of multinational business. These forces of and for integration have been successful in posing their agenda internationally as the new millennium proceeds.

 

II. The integrating forces in Western Europe have created what Michael Emerson (1998), in his Redrawin!! the MaD of EuroDe, calls "the 'unidentified political object"'. The purpose of this paper is to provide a name for that object. Is the European Union already a federal body? If yes, what does this mean for European development in terms of a cultural and political identity?

From an empirical perspective, federalism is often seen as something fairly imprecise, like a moving target. One must acknowledge that federalism is basically a subjective theory. On the other hand, its success as a theory has often been measured by the success of its institutional organizations or operative formations. It is also important to note that as an institutional form, federalism takes many organizational forms. Hence, like many institutional theories, federalism at best can provide only a general explanation or provide partial prescriptions for political developments within the empirical realm. However, in the long term it may have much to say about democratic, political, national and cultural concepts of sovereignty and self -determination of destiny.

Technically, the one thing that federal Europe is currently missing is an official constitution; however, in that Europe has developed in a rather peaceful environment (rather than immediately in the wake of repeated revolution or failed governance), I am not certain that the European Union-with all that is currently in place institutionally-needs a specific constitution any more than the United Kingdom does. Concerning the relationship of federalism to constitutional creations, William S. Livingston (1952) noted a half century ago that:

 " Nearly all theories have been at pains to point out that a federal constitution is a device for associating a number of distinct political and constitutional entities in such a manner that a new body is produced which is above and different from those that have come together.

But the component states still retain their identity, sacrificing to the collectivity only such powers and functions as are necessary for the implementation of the purposes for which the association is formed. Or, as it is described in some instances, the powers of the central government are devolved upon the subordinate bodies in such a way that both central and regional units are thenceforth endowed with certain powers and functions of which neither can be deprived by the other. This is to say that the central government's functions cannot be assumed by the local governments, or the local governments' by the central. Each is placed in relation to the other in a position of autonomy; neither is subordinate and each may exercise within its sphere the full extent of its powers."

Livingston (1952: 81)

Through alliances, conventions, laws, acts, regulation, consent of the people, and court decisions-as the United Kingdom before it-,the European union has inched its way towards becoming a sovereign body, namely a federal one. De la Vega (2000: 603)notes, "EC law makes more demands on national law than treaties traditionally have. EC law adopts a monist approach in which the member countries have agreed that EC regulations would be directly applicable in the Member States' respective legal systems without requiring that they be adopted by the legislative body of the Member States'."

Federations should be evaluated and studied as applications of or as structural forms of federalism. In Com~aring Federal Systems, Ronald Watts (1999), a Canadian scholar, attempts to compare federal systems by laying out what common structural characteristics federations display. Watts indicates that at a minimum a list of federalist functions should include:

LIST I

A-two orders of government each acting directly on their citizens.

B-a formal constitutional distribution of legislative and executive authority and allocation of revenue resources between the two orders of government ensuring some areas of genuine autonomy for each other.

C-provision for the designated representation of distinct regional views within the federal policy-making institutions, usuaIly provided by the particular form of the federal second chamber.

D-a supreme written constitution not unilateraIly amendable and requiring the consent of a significant proportion of the constituent units.

E-an umpire (in the form of courts or provision for referendums) to rule on the disputes between governments.

F-processes and institutions to facilitate intergovernmental coIlaboration for those areas where governmental responsibilities are shared or inevitably overlap. 

Based on Watts (1999: 7)

Items A, C, E, and F above unequivocally describe the EU today: (A) The EU is certainly composed of at least two levels of governance, the EU level and nation state levels of governance. (C) Similar to the way the Bundesrat represents the Lander or states in the Federal Republic of Germany, the EU Council directly represents the sovereign nation states. The other directly elected body is the European Parliament whose influence, according to Tsebelis and Kalandrakis (1999: 144), "is not confined to insignificant amendments or to amendments introduced in the second round." The European Parliament is also directly elected the people as the Bundestags in Germany and Austria are. Meanwhile, the EU Commission acts as a quasi- executive branch and is certainly indirectly elected by the people and nominated and approved by their elected representatives. Finally,(E) The European Union has its own Supreme Court of Justice. As a matter of fact, according to Connie de la Vega (2000:603) and Rossa Phelan, this court already oversees EC law, which is "more like the constitution of a federal state than a traditional international organization as is contemplated under public international law." Further, (D) state and federal (and regional )governments back each other through institutions that cooperate in many overlapping areas of shared powers.

In sum, as Pippa Norris ( 1997: 275) in an article "Representation and the Democratic Deficit explains "[M]uch of the EU is federal, meaning that certain powers are transferred to European bodies above national governments (See Pinder 1991; Pryce 1987; Nicholl & Salmon 1990); Kirchner 1992; Keohane 1991 ). The European Commission, a rule-making institution, is essentially a supranational body, as is the independent Court of Justice; organized interest groups are consulted through the Economic and Social Committee, and European Parliament is chosen through direct election." Specifically concerning the supranational role of the courts and EU law, it should be noted that (1) the Court has already forced France to restrict subsidization of its native auto industry and banks, (2) airlines have been deregulated across all countries, and (3)EU health policies--in the wake of the mad-cow disease scandals-are being enforced.

Such list making by Watts is fairly important to many types of federalist theoretical enquiry. However, comparative federalist theory could do more. For example, Jonathon Lemco ( 1991 ), in his evaluative research on theories of Political StabilitY in Federal Governments, ambitiously operationalizes two important sets or lists of conditions for creating and maintaining federations. These two sets of lists consist of variables based on theories of Riker, Watts, Wheare, and seven other theorists of federalism. Lemco applied these theories to data on 44 different past and present federal states. (See Table I.)

 Tabell

Conditions associated with the origins of federations

1. The presence of a territorial or spatial division of power (Elazar, Lijphart)

2. The presence of a written, flexible constitutionI (Elazar, Watts)

3. The presence of a bicameral form of government (Watts, Lijphart)

4. The presence of an external threat or hope of military expansion (Riker, Wheare, Maddox, Dikshit)

5. The existence of a popular hope for improved economic position of federating ( Wheare, Dikshit)

6. The experience of previous political association (Wheare, Watts)

7. The existence of similar political and social institutions before and after the federation (Wheare )

8. Geographical neighborhood among constituent units (Wheare, Maddox)

9. The presence of flexible elites during the federating process (Deutsch, Lijphart)

10. The existence of evidence of administrative efficiency before federation (Watts)

II. The presence of a general community of outlook (Watts)

12. The existence of role models (Watts)

Conditions associated with the maintenance of federations

I. The existence of continual external threat (Riker, Wheare, Maddox, Dikshit)

2. The existence of a hope for continued economic advantage with federation (Deutsch, Wheare, Dikshit)

3. The presence ofa two-party or multi-party systems (Riker, Dikshit)

 4. The presence of political freedom in the federation (Lipset)

 5. The presence of crosscutting cleavages (Watts, Lipset, Dikshit)

 6. The presence of easy communication across political spheres (Deutsch)

 7. The presence of easy transportation across constituent units (Deutsch)

 8. The presence of flexible elites The presence of easy communication across political spheres (Deutsch, Lijphart)

 9. The presence of major constitutional change. 

Based on Lemco(1991: 143- 144)

Lemco admits that federalist research today is still in its infancy but through his empirical research approach he is confident in indicating that the strongest associated descriptors for the formation of an ideal federation are as follows:

Such a federation would be composed of many small constituent units owing first allegiance to a strong central government. It would have an effective two- or multi-party system that would allow for a great deal of political freedom. Furthermore, the federation would be created in the face of a strong military or economic threat, and this threat would not dissipate until a strong sense of national legitimacy developed. This sense of legitimacy would be threatened; however, if there were frequent constitutional changes.

Lemco (1991:160)

If these are, in fact, the key known variables for the formation ofa federal state, one needs not wonder that at this current time-following a long cold-war, potential nuclear winter, growth in the number of multinational corporations, and the subsequent modernization of global transportation and information infrastructures-that federation building and federalist trade alliance formation are seen as an attractive alternative across the globe. It is important to point out that Lemco's formulation here supports Theda Skocpol's (1979) emphasis on the role of international forces in effecting internal national state's governance and possible subsequent revolutions. Western Europe throughout the Cold War fast such an adversary from the Soviet East and had to handle America's hegemonic tendencies at the same time. Now Europe faces continued global economic competition. Further, it should be noted that the absence of an actual constitutional frame possibly allows the EU to evolve its rulemaking with greater fluidity than if constitutional conventions or charges had been required at each new phase.  

Lastly, and most importantly for this paper, both Lemco and Watts-as many federal theorists before them have-still assume that a particular written document called a constitution is still necessary . However, this may not be the case for all scholars. Baratta (1999) suggest that the four major problems for federalist bodies are ( 1) defining federal community membership, (2) deciding between pure proportional representation as per population or weighted proportionality reflecting the national peoples of a democracy, (3) whether and how to delegate powers or to retain powers, and (4) how to transition to federation. Schmitter (2000a) and Zielonka (1998) have handled these issues as well; however, it is not clear that instead of arguing against my proposed model of federalism without an explicit, Scmitter and Zielonka are actually settling how to make the European Union more democratic, constitutionally correct or a more stable federation.

III. The U.S. became a federation in the period between 1787 and 1789 with much debate, with the writing of a federal constitution, and the eventual passage of said constitution through a myriad of conventions in thirteen states. However, since the European Union seems to have all the trappings ofa federal state, Schmitter and Zielonka currently seems more concerned with stability of the federal union

and defining its population and borders rather than trying to create something greatly different than already in fact exists. Nearly a decade ago Albert Sbragia in Euro-Politics (1992: 262-263) pointed out that many scholars confuse constitutional and political federalism. He added, concerning the EU, that "one option available to the Community is to implement the political dimension of federalism without its constitutional dimension. Thus a federal-type organization could evolve without becoming constitutionally based federation in the traditional sense."<3)

Lemco, in the second part ofhis defining of idealized federalism, discusses his particular findings on the prerequisite sources of a federation' s stability: To further minimize the potential for federal instability, the political elites of such an ideal federation would avoid concentrating national minorities in a small number of constituent units, where the minorities would be in the majority. In addition, the evidence suggests that if one religious group was especially dominant in the federation, there would likely be a struggle between religious and secular interests for the primary allegiance of the population. Historically, this competition has often been associated with federal instability . Lemco (1991:160)  

In choosing to focus attention in this way, Lemco shows a problematic normativizing tendency of much empirical research. For example, while Lemco in this same book is correct in stating that Canada is one example of those federal nations which face great instabilities because of the largely homogenous Quebec province. However, he fails to move outside the framework he has just developed to question whether or not Canada's assymetric federalism is not, in fact, more adept in handling such instabilities than the more symmetric federalism found in the U.S. Meanwhile half-way around the world, a much more heterogenous India (Khilnani, 1999) seems to be finding its way progressively to more stable forms of governance with each decade-even though it is a large nation largely made up of other states run by different minority cultural groups. In short, with the simple example of assymetric versus symmetric federalism, it is obvious that empiricists need to move beyond observation to prescription with much greater care. In order to do so, theorists will need to acknowledge where the limits of their research are and where both subjectivism and analytical research require greater global and specific tools and measures for comparing federal states than have yet been put together.  

It should be noted Lemco (1991:160) is much more balanced in pointing out that, politico- economically speaking, a federation is generally a modem nation state. He suggests that political elites would ideally, alia Peterson (1996), weigh the costs of federation and make a decision for federalization. Such simplification is however just that-too simple and loaded with bias. Lemco's analytical skills are shown at best to be sloppy when he states that "in developed states, leaders would be advised to discourage rapid economic modernization: [whereas] the evidence suggests that where rapid economic change exceeds the adaptive capacity of the nation's political institutions, as has often historically been the case, there has been a great deal of divisiveness". Both the U .S. and Canada as well as Australia, the Swiss and pre- WWI and post- WWII German federations became more and more federalized and industrially developed over the same time period. Also, in general each nation first announced to the world and to themselves in historic constitutional documents that they were committed to a federal arrangement and then proceeded to transition from what we would roughly be called con federal arrangements to more federal relationships between central state and constituent units.  

IV. With all these recently increased interest in promoting regional development, security, and political-economic transition throughout Europe, it is certainly important to come to an understanding of what is meant by federal or confederal governance as well as what federal or con federal arrangements are. Theoretically, what are the foundations of the term federalism and how are they currently used? This is important because the idea of federalism is a relatively slippery and subjective term which at the same time has become key to the identity of peoples and institutions in many lands-starting with the so-called American experiment in constitutionalism in 1787, continuing with the Canadian one in 1867, the Australian one in 190 I and--on through our present day. Federalism is loaded up with terminology and notions which have promoted nation building--while at the same time when misapplied, misunderstood, or just plain weak in practice can lead to collapses as in the former Soviet Union or even to the rise ofmore radical alternatives such as occurred with the power grab of the NAZIs in Germany as the federal Weimar Republic exhibited its frailties in the early 1930s.  

This raises a modern claim that one problem with federalist theory is its historical over-reliance on constitutional compacts. To what degree is either the inflexibility or the over-flexibility involved in constitutional arrangement productive or non-productive? This is unclear. Further, to what degree should a society or a government by-and-for-the-people be free to freely interpret and apply the constitution without the people resorting to revolt or calling to amend the constitution en masse? For example, Theodore Hamerow (1967: 324) notes that regardless of the "puristic theory of democracy" behind the federal structure, the Weimar Republic was not likely to survive the German context of the 1920s and 1930s. Hamerow charges, "No instrument of government, libertarian or authoritarian, could of its own strength have overcome the cumulative effects of military collapse, economic chaos, and social disintegration." Of course, such assumption, is debatable as well; however, with it, Hamerow raises a

good example of anchoring too much federal theory into the written constitutional form. As a matter of fact, many federal national leaders of constitutional states, such as those in Mexico, Venezuela and Argentina, have seemingly ignored their constitution and have acted historically more as unitary rather than federal governmental institutions.

On the other hand, Ostram ( 1987: 20) takes on such negative assessments of constitutions--and constitutional theory: "Constitutions in the modern era are dismissed as formalities having little relevance for construing political experiences." Coming from a rationale school perspective, Ostram ( 1997) has set out in a series of articles and books to establish the organizing logic of America's founding leadership in organizing a compound republic, compound in representation as well as sovereignty. Ostram claims that Hamilton and Madison helped develop the American experiment in response to a Hobbesian recommendation that a state must have both a common voice and a common sword. Earlier, Ostram had argued that in order to avoid the creation of a supreme unlimited authority-whom no one could guarantee would remain benevolent or enlightened-Hamilton, Madison, Jay in 1787 sought to develop a "' general theory of a limited constitution' [and to] design and create a system of government based upon reasonable choice (Ostram 1976:62)." Emphasizing the republican nature ofa federal constitution, Ostram says that the guidelines were set out in constitutional law and could only be undertaken by citizens acting collectively. Just as importantly, the constitution is unalterable by any single governmental authority acting alone (Ostram: 65).

v. Another important matter of state building-whether a federal or unitary one in the post-Westphalia era-has been the concept of territoriality. Historically, almost all work on federalism assumes that territoriality is important. William Livingston (1952: 85)wrote that "no government has ever been called federal that has been organized on any but the territorial basis". History has changed a lot since that 1950s when that statement was written and some political scientists do view the matter differently. Zielonka (1998) indicates that the closure or openness of EU territorial frontier is essential for honestly letting nations of Eastern and southern Europe-like Turkey and the Ukraine-know where the EU stands.

However, other authors, such as Brzinski, Lancaster, and Tuschhoff ( 1999) do not mention this territorial rule in their definition-apparently because they are ready, where older theorists were not, to consider the creation of or description of federalist entities, such as the European Union, without territoriality being a key to their definitions of jurisdictions of either federal or constituent state power.  

Another important facet of the federalism debate is the differing foci on residual, shared, and exclusive powers are. Hence, modern controversies over power sharing in federalism date from the original constitutional debates for the 13 American States some two-hundred-plus years ago. These sorts of power sharing issues often relate to asymmetries and symmetries of power which have manifested themselves in the modern world. Essentially European models, starting with the so-called confederal- federation of Switzerland in 1848, have often been able to accept greater assymmetries in representation and political rights than have non-European federations,-with the exception of federal India which follows the European model.  

Using strategic choice methodology for studying federalism in the aftermath of the recently collapsed cold-war era East European federal states, Carol Skalnik Leff ( 1999) has found that asymmetrical federal arrangements of power sharing, due to their greater flexibility, are a potentially more successful strategic constitutional choice for more heterogenous states, like India, Canada, and Switzerland. Whereby, historically more homogenous nations, like the U.S. and Australia function more effectively in more symmetrical relations. Symmetric approaches deal with the issue of equality of representation of the individual within the power sharing arrangement; whereas, asymmetry recognizes that certain language groups-such as the Quebecois in Canada-- or other specific minorities--including native tribes--might need certain acknowledged rights within the federal order. This means that EU, too, might appropriately allow a great deal ofasymmetry--as it currently does--in the form of representation in theEuropean Parliament and in the decision making processes in the Council and on the Commission. For example, Luxembourg residents and those of other small nations have much more representation than the larger more populous EU nation states of Germany, Britain, and France.

Organizational theory research, exemplified by Alfred C. Stepan's (1999:21-33) work on federalism and democracy, agrees with Leffand emphasizes that two other issues are intrinsically tied into the decisions for or against asymmetries in federalist constitutional theoretical development. First, Stepan contrasts "demos-constraining" and "demos-enabling" federal constitutional frameworks as well as "holding-together" a nation versus "coming-together" nationalism. In these distinctions, Stepan is raising issues related to the character of federalism and returns to Riker's view(4) of how and why enduring federations and other nation states are created. In this view, Stepan (1999:22) claims that American-style federalism was an act of a nation "coming together", i.e. building a union by coming together. In contrast, in Belgium's case in 1993 and India's case in 1950 the decision for a particular national governmental organizational form of statehood focused on how to hold together a multicultural nation that had been facing political entropy. In the U.S. case, the major focus was oriented more towards how to make the territorial government of the American States a stronger and more effective national organization-rather than simply as to how to keep a confederal arrangement from falling apart.  

Stepan's reference to "demos-constraining" and "demos-enabling" federal constitutionalism is a throwback to Riker's belief which sees "the demos constraining aspect of federalism (and the weak politywide political parties normally associated with federalism) as basically good, because it can help protect individual rights from being infringed by the central government's potential for producing populist majorities." Stepan notes that in the asymmetric design of certain constitutional federalist states the designers of countries, such as India and Belgium, responded to a much more complex picture of multinational governance than 18th century America authors faced. These nation states had to consider the validity of over-representation for some groups, as in through the creation of new districts, through setting quotas, or by setting aside a guaranteed number of representatives for certain ethnic groups--thus enabling those peoples and the state to maintain that nation's multi ethnic diversity and harmony (Stepan 1999:22- 23). Since World War II, European nation states have certainly been a group of states seeking to incrementally come together. However, with the increased moves to further integration starting with the founding of the European Parliament and the Single European, Maastricht, and Amsterdam treaties-as well as the creation of the European monetary union--, the EU has also meanwhile begun to appear to be led by a motivation to hold itself together. This is particularly true especially in the wake of the Cold War's end, with increasing global competition, and threatened large-scale immigration and refugees from Central and Eastern Europe, Africa and Asia.

Before heading too much further along the path of expressing what federalist societies, or what federal theories, should look like or encompass, it is important to return to Livingston who noted that federalism "is a function not of constitutions of societies but of societies (1952:88)". This sociological view of institutional federalism emphasizes that differences in society "are by degree rather than kind." Federalism is not an absolute. There are not absolute or completely unified societies and there are no completely diversified federal societies. Further, according to Livingston, some societies have unitary-type governance due to common historical tradition and have "overcome diversities of economic interest, language and the like, which in another society , with weaker historical tradition, would necessitate federal institutions." Egypt is a prime example of such a diverse unitary governance today. On the other hand, citizens of a relatively homogenous population, like Germany, have often chosen a federal form of governance. Hence, nationalism, from both a sociological and political perspective, does not constrain choice for a federalist or unitary form of constitutional governance; however, nationalism may over time either reinforce a particular form of constitutional governance or it can be a focus for nationalism leading to destruction of the state as occurred in post- Tito Yugoslavia. Further, Livingston (1952:88), warns, "Federalism cannot make coherent a society in which the diversities are so great there can be no basis for integration."  

From these perspectives, Europe's federal future remains wide open. A European federal national identity may yet take shape just as it did in the U .S., India and other nation states. One must not forget that it took decades, however, for these identities to develop. It is not clear that in the U.S. that this identity of federal versus confederal was a settled matter before the end of its tumultuous War between the States in 1865. Federal identity in Europe could still yet require cultivation over long decades or simply just find itself plainly rejected in the wake of some future economic failures or its inability to be excepted socially or democratically by a sufficient number of future European voters.

In the meantime, there is necessarily not any reason from a political scientific perspective to not concur with the status of the EU being a federalist entity. Other federalists entities, such as the United States of Central America, the federal Congo and the federal union of Pakistan lasted many fewer years than the EU has already survived and the EU is much more robust politically, economically, and socially than those and the former communist federations ever were. More importantly, there is no cultural baggage such as Imperialism nor Manifest Destiny driving the growth of the EU in the new millennium--nor outside forces actually dictating federation as in the Yugoslavian union of 1919.

VI. Besides issues of the polycentric versus unicentric governance, Vincent Ostram (1991:152) emphasizes three other important foci of federalism from an intergovernmental organizational perspective. These federalist concerns have to do with representation, decision-making, and competition. Additionally, according to Daniel J. Elazar (1994: 987), concepts of nationalism, liberalism, and democracy have been intrinsically intertwined with American and other modern federalist theory .It is also necessary to note that nationalism, liberalism, democracy, and federalism have often been intertwined to a great degree in concepts of constitutionalism as well. (Fig. 1 ) 

American Federalism

Nationalism                                        Liberalism                                          Democracy

Constitionalism

 Fig.l

McGowan and Wilks ( 1995) have indicated that within the arena of competition-especially in promoting economic competition-the EU is already at its most federal or carrying out its most important and successful supranational policies. This sort of fiscal and institutional approach to federalism has been very important in the U.S. for most of the last half century. Paul Peterson (1995) in his The Price of Federalism, points out that both the courts and experimentations in efficiency now mark Americans attitudes toward federalism.  

Peterson ( 1995: 10) says that what the U .S. has been left with in terms of federalism in the post civil war period are "quasi-sovereign states". Each government maintains its own form of independent representation and its own ability to spend and tax. Peterson undertook research on economic development and redistribution of wealth issues in order to test the arguments charging such inefficiencies in governance. Peters()n discovered that depending on the legislature--national or constituent-and on the issue--as applied to one level of governance, local, federal or even for shared powers-some levels of governance are indeed more effective or most appropriate based on efficiency measures. For example, concerning state aid to families and children, Peterson in The Price of Federalism (1995:108-128) finds that the federal government more efficiently redistributes resources through law and regulation than do individual states or regions. Meanwhile, both functional and legislative theories seem to work equally well in terms of explaining federal/state cooperation or competition in applying for and using and funding grants-in-aid (Peterson: 129-152). In his conclusion, Peterson provides a normative prescription for federal governance based on such empirical research. He says that particular levels of government perform certain roles more efficiently than other levels of government; therefore, he advocates that different levels of governance should take on those duties in those areas that they are most efficient in while continuing to compete with one another only where shared powers are effective. If the residents of Western Europe and political science can accept a federal description of the European Union, greater intergovernmental efficiencies can be demanded of the EU and national or state governments while the citizens can better understand that demands for transparency along with further growth in other democratic trappings are their birthright. In short, without a war or a major catastrophe, there is not likely to be a major event that suddenly causes Europeans en masse to demand a constitution or other trappings of federalism (such as popular demands for a peoples referenda on a constitution suggested by Schmitter (2000)). This lack of an imminent catastrophe is important because economic, political, and social disturbances certainly led to a U.S. constitution in 1787. In this new millennium, as long as Europeans avoid such a catastrophe, greater popular recognition through subsequent education of its peoples, interest groups and political parties will enable the EU to continue integrative path. Meanwhile, awareness is growing among national governments, EU citizens and EU researchers alike that there is a competitive trade-offbetween growth in democracy and growth in economic efficiencies. Nevertheless, all parties seem willing to pay for this trade-off in the long term (Harcourt & Radialli, 1999), i.e. increase democracy.  

A comparativist critique or response to Peterson's normative federalist prescription of governance would be that some other federal governments in the world find that the constituent states serve quite well in redistributing wealth to poorer states. Germany, for example, requires Bundeslander, Germany's constituent states, to be fully in charge of economic direct transfers from one region to the other and has hence been able to maintain one of the more equal distributions of wealth among its citizens in all of Europe. Such cross-cultural comparisons raise the issue ofhow a federal designer might go about assigning duties among quasi-sovereign states. From a historical institutionalist perspective, one might wish to question whether over time the assigning of different duties might not change as social, educational, political, and economic needs change. For example, the social needs in the EU now are quite different from what they were twenty years ago and are significantly different from those at mid-century .It could certainly be the case that in the short-term, normative prescriptions of power sharing based on either a traditional interpretation of the constitution or on empirical research may not be found useful over an extended period of time. Recall that Lemco ( 1991 :7) wrote that federalism is a process: "As consensus within each ethnic or communal group across the various communal groups changes, movements toward or away from centralization develop. Additionally, depending on the powers that are reserved, delegated, assumed by the federal government, many different variants of federalism can and do emerge."

VII. Interestingly, Americans have historically relied on courts to navigate social and economic changes related to governance and the repartitioning of responsibilities. Alexis de Toqueville had already noted this U.S. preference for courts nearly one-hundred sixty years ago. According to Guillermo O'Donnell (2000:25-26) in "The Judiciary and the Rule of Law", Toqueville squarely placed the blame for this phenomena on two institutional factors. One was the creation of the many federal jurisdictions laid out in the constitution. In America "Toqueville noted the curious fact that the authority to rule statutes unconstitutional was vested not only in the Supreme Court but in all the courts." This widespread authority throughout the judicial system in the U .S. was something unheard of in Europe in its day and reinforced Americans preference for the wording of a constitutional document dictating behavior at all levels of governmental lawmaking. However, in the late 20th century the EU has followed somewhat in this path. On the other hand, the second institution, the federal government itself, was for Toqueville more notable by its apparent invisibility. Toqueville(5) saw that the federal government allowed the local governments to oversee application of governance and law at the local level. Elected officials most often carried this out. Upon retirement or loss of office these officials would simply return home leaving only a small bureaucracy and strong courts to enforce the rule of law. O'Donnell (2000:28-9) admittedly acknowledges that Toqueville, in fact, ignored many of the weaknesses of the decentralized I9th century federal U.S. government-especially the lack of effective and coercive power--and the conservative nature of American courts which left the courts open to the biases of each regional community .This 'is not unlike the EU's reliance on nation states and regional governments today. It should be recognized that in the same writings Toqueville was fairly correct in stating that values of freedom and personal autonomy were already sustaining and fueling political growth and agitations of citizens in the courts. A warning hear would include that without developing mass conceptions of individual autonomy and freedoms, a federal democracy-<>r any democratic state-may not likely develop or survive as desired. 

It should also be recalled that earlier arguments concerning various definitions and theories of federalism continue. Federalism's nature and dimensions are so varied that as an institution-even as a constitutionalized federation- and it will likely be problematic with many societal changes to obtain consensus in describing federalism normatively, analytically, and empirically. Yet, at the same time, it remains enticing for many political scientists to simply study the institution of a federal body or state as a basic unit of analysis without trying to study federalism separate from statehood or nationhood as more historical and sociological theories do. This paper has posited that such a path is appropriate. This is why sociological and historical institutionalist theoretical approaches, exemplified by O'Donnell' paper on the rule oflaw in America and the American judiciary, are likely to be more helpful than simply rational choice institutional theories which focus on political-economic efficiencies.

In conclusion, it may well be that some sort of symbiotic relationship exists between good federal states and a prerequisite of industrialization or economic development whereas dysfunctional and underdeveloped states show little federal conjunction. However, even if federalist research is to be better than it is today, causal analyses, must in the future be combined with strong empirical research and better normative explanations. Such new theories must come to terms with the newly evolving European Union, which appears to be a federacy in many respects--but without a constitution. Could it be that through treaty making, a tool used normally for alliance formation but applied in other cases of international law to build common law--such as the passage of common human rights legislation? Federalist theory needs to look again at nationalism, democracy, constitutionalism, and liberalism and determine whether all four "isms" are all truly essential units of analysis of federal arrangements and theory. Looking at the EU example in  an age of more and more international law , previous historical theoretical focus on a federal compacts as essential points of state creation ( for federal governments) needs to be reevaluated as a means of promoting democracy, liberalism, national identity , and constitutionalism in multinational cross-cultural settings. Meanwhile, with the continued strengthening ofpolitico-economic relationships, like those of the EU, NAFT A and Mercosur(7), a typical modern pattern of federation formation may be developing while a post- modern world calls into question traditional Westphalian images of sovereignty and as international law is being recognized as more and more binding on actors. Lastly, concepts of territoriality, another basic unit of federalist and state theory, also might soon be found questionable as trends in free trade and virtual commerce and communication are being applied across borders, for example, as seen in recent attempts to argue in European courts that the rest of the globe to adopt U .S. basic freedom of speech rules as international law for publishing and access on the internet.

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Notes

(1)   Federalist No.51 by Madison (2) in describing the new U.S. government as outlined in the federal constitution of 1787 states, "The power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." Although an EU constitution is not yet written nor recognized, the EU definitely seems to be composed of a federal structure. Many authors, such as Brzinski, Lancaster, and Tuschhoff, Christian (1999), already describe the EU as federal. However, most of the Anglo-American world does not. See Nugent (1994)for more on this.

(2) Wooley says that there were six points of congruence that allowed American world federalism to be successful in the mid-1940s: (I) powerful and pervasive fear for America's future in international politics, (2) conditions of the international system, (3) American openness to considering a new diplomatic world order and even world governmental arrangements, (4) idealism modified by a realistic evaluations resulting from participation in world affairs, (5) popular reception to governmental role as problem solver resulting from New Deal experience, and (6) emphasis American self- interest and provincial attitudes supporting federalism.

(3) Sbragia, in footnote form, notes that both Preston King (London: Croom Hall, 1982) in Federalism and Federation and Michael Burgess (London: Croom Hall, 1986) in "Federalism and Federation in Western Europe" in Burgess edited Federalism and Federation in Western Europe discuss how federalism and federation are not always-but in certain cases indeed-related to one another. Sbragia also notes that far too many authors, including Elazar assume that a constitution needs to be present for federalism to exist. Lastly, he states that too often non-European models of federalism are taken as a norm. American, Canadian, and Australian models were created in reaction to something that the people rejected greatly. Whereas other federations, such as the Austrian and German models were built on previous European federal models, taking what they saw most useful from these older European models of federalism

(4) See William Riker's take on these "demos-enhancing" and "demos-constraining" aspects of choice ofgoyemance in his (1982) Liberalism aQainst Populism: A Confrontation between the Theory of DemocracY and the Theory of Choice. Later, Adam Przeworski (1986)established these two specific terms in "Some Problems in the Study of the Transition to Democracy."

  ( 5) T oqueville ' s ideas on statehood, civil society, political identity, political association and federalism are quite in vogue these days. These are important now because it is understood that quite possibly the absence of a sense of a closed state and a society educated democratically in organizational association, as occurred under the Soviet Union and other Eastern European nations, was one of the major bases for collapses of federal systems there, since federalism requires multi-jurisdictional self-identifications and the obligations that go with them. See the following for more on this topic and Toqueville in Galsten's (2000) "Civil Society and the' Art of Association"' and Lefrs (1999) "Democratization and Disintegration in Multinational States: The Breakup of the Communist Federations",

(6) Many federal terms are currently used to describe the federalist or non-federal nature of the European Union. Interestingly, the only major hurdle for almost complete consensus as to whether the EU is a federal state is the creation of a specific document called a constitution. Otherwise, with all of the different types of federalism around the globe manifested in constitution and/or in operation, the EU is arguably already a federal state. However, Phillippe Schmitter (2000) in How to Democratize the EuroDean Union-- and Why Bother? Also emphasizes the specific democratic nomination process, such as constitutional convention or referenda, required for the creation of such a document..

(7) The South American Free Trade association called Mercosur now encompasses Chile. Its founders were Argentina, Uruguay, Paraguay, and Brazil. Chile is also expected to join NAFT A within a short time.

(8) In turn, any global community or individual national government's acceptance ofso- called internationalized business standards by any organization, such as the WTO, for example also return the federal theorist to the Latin root of the word feodus which means federalism, contract, treaty , or alliance. In short, with state making being strongly competed against by other governmental arrangements--if not replaced by contract making, treaty making, federalization, and alliance making-new federalist theory is going to likely have to take on non-state as well as multi-state as symmetric relationships not traditionally handled by American federalist theory .

(9) Returning to the 2Oth century for examples, under federalism it may be possible to educate or evolve from being anon-democratic regimes to becoming a more democratic over time(6) --as has occurred in the United Arab Emirates over the last thirty years since its inception and certainly occurred in post-NAZI West Germany. In turn, newly democratized peoples, like in the people or governments in the former Czechoslavakian state, may simply first seek to dissolve their entangling constitutional alliances only to turn around and apply for application in the European Union. In interpreting such turn- arounds, it might also be helpful to note that the Latin root feodus, from which the word federalism originates, also means contract, treaty, or alliance. With this definition applied to federalism today, one can begin to imagine a state or group of states moving in and out of arrangements by treaty, alliance and on to contractual union ad infinitum.