Academic

Podolnjak on the Small States & Constitutionalism in the U.S. & Europe

By Lawrence Solum

Robert Podolnjak (Zagreb Law Faculty) has posted Small States and Constitution Making: The Causes of Different Outcomes in the Philadelphia and Convention on the Future of Europe on SSRN.  Here is the abstract:

The theme of this paper is analysis of possible causes of different outcomes in two constitutional conventions - the American federal convention held in Philadelphia in 1787 and the Convention on the future of Europe held in Brussels in 2002 - 2003 - regarding the conflict between the large and small states, which was central in both conventions.

This conflict was relevant in Philadelphia in the resolution of issues concerning the representation and voting power of states in the Congress and some other institutional issues (Electoral College, veto on the laws of the states, Senatorial powers, amendments) and in the European Convention on similar issues of voting power of states, and the composition or leadership in certain bodies (the Commission, the European Council).

The small states in the Philadelphia Convention achieved success in defending the principle of equality of states primarily through the equality in the Senate and obtained some other important victories. This success in the process of 'arguing and bargaining' was the result primarily of four interrelated factors: favorable rules of play (voting by the states), voting strength of the small states and their cohesion and firmness throughout the Convention, their unyielding bargaining position as to the principle of equality of states and credibility of their threats that they would not ratify the Constitution under the terms imposed by the large states.

Analyzing the conflict between the larger and smaller states in the European Convention it is obvious that the position of smaller states was institutionally weaker (the representatives of states were in the minority in the Convention's membership as they were only one of several institutional components; the majority of small states were accession states which had no right to challenge a 'consensus' of the Convention) and procedurally weaker (the rules of play were against them, because they were imposed and manipulated by the Presidium, dominated by larger states; the voting, which could demonstrate their possible strength, was forbidden). Finally and very importantly, the small states were not coherent and united in pursuing its goals, they were not firm in defense of the principles they had declared at the beginning of the Convention, and at the end they didn't use credible threats, as was the case with the small states in Philadelphia. This are the fundamental causes for the failure of the small states in the European Convention to secure institutional solutions which they favored.

Full post as published by Legal Theory Blog on August 13, 2008 (boomark / email).