Fernanda Nicola and Jeff Miller: “The Failure to Grapple with Racial Capitalism in European Constitutionalism”
Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments that favored states’ rights doctrines that buttressed the social plagues of slavery and laissez faire policies that reinforced economic inequality. This selective reception of the U.S. experience, bracketing racial subordination and neoliberal policies under the rubric of states’ rights, propelled European constitutionalism into a neverland—one that claimed to draw inspiration from U.S. constitutionalism, while simultaneously dismissing as irrelevant some of its most profound socio-economic challenges. This is important, we argue, because the dominant European constitutional paradigm not only provides a distorted picture of U.S. constitutionalism, but also inhibits a deeper understanding of the European one due to its inability to grapple with racial capitalism, embedded both in its colonial past and its present ECJ antidiscrimination jurisprudence.
You can download the working paper at the SSRN.