PART 7  |   5 MARCH - 18 MARCH 2022

Article VI deals with the third component of the trias politica: the Judicial branch. As mentioned earlier, it is not possible at this time to determine whether all the institutions of the European Union, including the EU Court of Justice, are also institutions of the new Federation. This could be done by applying Article 20 of the Treaty on European Union: at least nine Member States may enter into enhanced cooperation without prejudice to the internal market (the safeguarding of the customs union, currency policy, competition policy and trade policy). In our view, such an enhanced form of cooperation could take the form of a Federation. In that case, there would be no need to establish a European Court of Justice for the Federation. That Court would then take on that function. If such an Article 20 Federation is not considered an enhanced cooperation, it remains possible for Citizens and States - like the United Kingdom - first to leave the EU (Article 50 of the Treaty on European Union), then to form a federation in its own right, and then to become a member of the EU as a Federation (Article 49).

Now first the judiciary with a Federal Supreme Court of Justice, at the top. In our opinion, a system of lower federal courts in the member states of the Federation is needed below this. We therefore first describe in broad outline what that judicial system looks like in the United States. This is followed by the articles of our draft.

As long ago as 1789, the US Congress laid down by law that the federal judiciary would consist of three layers. The first layer is occupied by the Supreme Court. Under it, there are nineteen federal courts of appeal against the judgements of the ninety-four federal district courts below it. In addition, each State has its own courts and thus its own State Supreme Court.

Note: the power of Congress to establish lower federal courts implies the power to abolish them as well. In the US, this sometimes happens in the power struggle between the President and Congress, when the majority in Congress is not from the President's party. In order to prevent the President from using his presidential power to appoint judges (after advice and approval from the Senate) only to put party members in such positions, it can happen that the opposition in the Senate blocks these appointments. If such a lower federal court were to be without judges for a long time (because the previous ones had retired or left for other reasons), it would happen that Congress would close down such a court.

The US Supreme Court rules in matters of the federal government, in disputes between Member States and in the interpretation of the US Constitution. The Constitution does not give that Supreme Court the right to declare laws contrary to the Constitution in so many words, but in a dispute in 1803, the then President of the Supreme Court established or claimed that power for the Court. This so-called 'Judicial Review' implies the power of the Supreme Court to declare a law of Congress or a measure of the executive branch contrary to the Constitution. The Supreme Court's decision is a precedent for similar cases in the future. The Supreme Court acts as an appellate body to decisions of the nineteen federal courts of appeal.

At the lowest level, the federal district courts have jurisdiction in disputes relating to the federal system, and in matters between litigants who do not reside in the same State. Decisions of these courts may be appealed to the nineteen courts of appeal. These federal courts are thus based on Article III of the American Constitution (in our draft Article VI) and are therefore called 'constitutional courts'.

The courts of these three tiers have general jurisdiction. They handle criminal and civil cases. In addition to this three-tier structure, there are special courts, for example for bankruptcies (Bankruptcy Courts) or taxes (Tax Courts). However, these have a different status. The Bankruptcy Courts are considered 'below' the district courts and therefore do not fall within Article III of the US Constitution (in our draft Article VI). Their judges are not appointed for life and their salaries can be adjusted. The Tax Courts do not fall under that Article III either, but under Article I, Section 8 (in our draft Article III). It is a so-called 'legislative court'. Note that the US Constitution thus gives Congress the power to establish courts in two places – their Articles I and III; in our Constitution Articles III and VI.

In addition to acting as an appellate body, the Supreme Court rules on disputes concerning the interpretation of the Constitution, treaties and matters that affect Ministers or Ambassadors and Consuls of other powers.

US federal judges are appointed for life. This means that they remain in office until they die, voluntarily resign, or retire. If they commit a serious crime, they are also subject to the procedure of impeachment.

In addition to this three-tier federal judiciary, the US Member States themselves have courts. This makes things rather complicated, because it happens under circumstances that federal courts may interfere in conflicts at the level of a State, and vice versa that courts of a State may rule in disputes of a federal nature. The courts of a State administer justice on the basis of the laws of that State. And thus, also with the procedural law of that State. Each State also has its own Supreme Court. In principle, this Supreme Court of each State is the court of last instance. But in many cases, decisions of that State Supreme Court can still be appealed to the Federal Supreme Court. The State Supreme Court is bound only by interpretations of the Constitution by the federal Supreme Court, not by decisions of lower federal judges.

The US Constitution does not specify the number of judges on the Supreme Court. However, for many years it has consisted of nine people: the Chief Justice as the presiding judge and eight others. All are appointed by the President after approval by the Senate. The Court has no separate chambers and always rules jointly, by majority vote. Pleas for the establishment of Chambers have always been rejected by the Supreme Court on the grounds that there would then be more than one Supreme Court.

Now to the relevant Articles of our draft Federal Constitution.

Explanation of Section 1- The Courts and the Judges

The judges of the Federal Supreme Court of Justice are not appointed by the President, but by a Praesidium of Judges, based on an act by the European Congress. This is to prevent the President – supported by a partisan House of the States - from pushing through party-political appointments.

It is up to the European Congress to decide whether there should be lower federal courts below the Federal Supreme Court of Justice, so-called Constitutional Courts, in addition to and separate from the courts that each Member State establishes itself.

The requirement of good behaviour of judges means that they may continue to work until they retire at 75, unless their behaviour leads to impeachment by Congress. This has happened fourteen times in the US. It is also stipulated that their salaries may not be reduced (but may be increased) in order to avoid pressure on their independent judiciary.

The phrase 'proper representation from all Member States' in Clause 2 implies that the law of the European Congress referred to here will determine how many judges will sit in courts. So, this Constitution does not fix the number of judges of the Federal Supreme Court of Justice. The evolution of the judicial system of the European Federation must be flexible and quickly adaptable by law of the European Congress.

Explanation of Section 2- Powers of the Federal Judicial Branch

Section 2 deals with the jurisdiction of the Federal Judicial Branch. The Federal Supreme Court of Justice as well as the lower Constitutional Courts have the power to declare rules and executive measures invalid on constitutional grounds. They may review laws against the Constitution because it is the highest form of law. There has been much debate about this in the US. One can ask the question: “Who is the boss here?” If the legislator makes a law, it applies to everyone. But if a judge considers such a law contrary to the Constitution, that validity falls away. Federal judges (including those lower than the Federal Supreme Court of Justice) can therefore 'overrule' the legislature.

Alexander Hamilton, in No. 78 of The Federalist Papers, provided a clarification on this point that to this day stands as the prevailing doctrine: 

"The interpretation of the laws is the proper and peculiar province of the [federal] courts. A constitution is, in fact, and must be regarded by the [federal] judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental." 

So, we follow Hamilton in his reasoning that a Constitution is the most fundamental law, of and for the people. Consequently, that law takes precedence over all other laws. This means that the Constitution in the Federal European Union is the judicially enforceable law of the highest order. It is truly ‘a Constitutional Law’, i.e., it is more than a ‘Convention of the Constitution’ or a moral-political agreement that can hardly be invoked in court.

In Section 2 the Clause 1b is a peculiar one. In charge of protecting the rule of law throughout the Federation this power of the Judicial Branch is a safeguard against socalled ‘destructive amendments’, as in ‘unconstitutional constitutional amendments’[1]. Those amendments are not meant to improve but rather to attack a Constitution, either the Federal Constitution or that of a Member State. On the basis of a teleological approach, all courts of the Federal Judicial Branch determine what is ‘legally right’. This may differ from what is politically considered a good solution to societal problems. If politicians annihilate societal cohesion and thereby cause, among other things, financial-economic problems, which is a common precursor to war on a grand scale, then the Federal Supreme Court of Justice and the Constitutional Courts can prevent them from restricting and abolishing (fundamental) rights and even turning society into a concentration camp. Clause 1b protects the vulnerability of the Constitution against autocratic impulses.

[1] See Yaniv Roznai, ‘Unconstitutional Constitutional Amendments: A Study of the nature and Limits of Constitutional Amendment Powers’, PhD Thesis for the Department of Law, London School of Economics and Political Science, 2014.

Clause 2 of Section 2 provides that for suits to which a Member State or Member States, Ministers, Ambassadors and Consuls of the European Federal Union are the only parties, only the Federal Supreme Court of Justice shall have jurisdiction at first and last instance. This exception to the principle of jurisdiction at first instance and on appeal is dictated by the delicate nature of such litigation, where the immunity from jurisdiction of Member States or officials within and outside the European Federal Union is at issue.

With Clause 3 of Section 2, we introduce jury trial in the European Federal Union. At least for crimes specified by law. A thorny issue in many countries. We are familiar with the fierce debates of those for and against this. Our argument for taking this step nevertheless lies in the all-important element of federal thinking: the Federation belongs to the people. When in doubt about the right way of constitutional and institutional design, it is wise to take the people as the starting point. Therefore, for certain crimes, jurisdiction by a jury, assisted by professional magistrates. 

Explanation of Section 3 - Powers of the Federal Supreme Court of Justice

This Section 3 is dealing with some specific powers of the Federal Supreme Court of Justice. It is a special power to make preliminary rulings on the interpretation of the law at the request of lower courts or individuals.

Explanation of Section 4 - High treason and no death penaltyl

We assume that these provisions require no further explanation.