PART 7  |   5 MARCH - 18 MARCH 2022

Article VI is about the judiciary, the third branch of the trias politica.

Section 1 provides that there is a Constitutional Court of Justice, the Supreme Court. And that Congress can decide to install under that Court a number of lower federal courts. Beneath this, there is a third layer, the courts of the Member States. In view of the vertical separation of powers, those Member States also have their own Supreme Court.

We have chosen, as in America, not to link the term of office of the judges to a specific term or age. It is up to the members of the Citizens' Convention to amend this. For example, to limit the term to fifteen years. And the age to seventy-five years. An important aspect of Clause 1 of this Section is the provision that judges' salaries may not be reduced. This strengthens their independence.

Our Constitution does not stipulate the number of judges in the Supreme Court. Under Article V, Section 6, it is the power of the President to appoint the judges, at least after the consent of both Houses of the European Congress. This implies that the first President of the United States of Europe determines how many members the Supreme Court will have and that thereafter other Presidents may determine to add more judges to those sitting, who cannot be dismissed. This topic is currently under discussion in the USA under the theme 'packing the supreme court'. Because President Trump, with the help of the Senate, has achieved a Republican majority on the Supreme Court, the Democratic party wants President Biden to use his power of appointment to increase the number of nine judges to thirteen. And thus, to achieve a democratic majority in the Supreme Court. So far, the leadership of the Democratic Party has managed to nip this inflationary process in the bud.

Federal judges cannot be dismissed, but they can be impeached if they misbehave. This has happened fourteen times in the US.

Section 2 deals with the jurisdiction of the federal courts. In fact, this means that what the federal judges - and certainly the Supreme Court - decide is equivalent to the law. These judges have the power to test laws and measures against the constitution and thus possibly declare them unconstitutional. This implies that federal judges may overrule the legislature on this point. It is then up to the legislature to repair itself with better legislation. The constitution is of, by and for the people and therefore the highest form of law. The fact that federal judges are authorised to test laws against the constitution is an ultimate expression of popular sovereignty: the people are above the legislative and judicial branches.

Paragraph 3 of Section 2 contains a controversial provision: jury trials for certain crimes specified by law. It is up to the members of the Citizens' Convention to decide whether to keep it or remove or amend it.

Section 3 deals with the trial of high treason and I will not go into it here.

Article VI – The Judicial Branch

Section 1 – The Courts and the Judges

  1. The judicial power of the European Federal Union is vested in the Federal Supreme Court of Justice. The European Congress may decide to install lower federal courts – Constitutional Courts - in Member States of the Federation. The judges of the Federal Supreme Court of Justice as well as those of the Constitutional Courts hold their office until they reach the age of 75 and as long as their conduct is proper. For their services they receive a salary which during their office cannot be reduced.
  2. Judges, both from the Federal Supreme Court of Justice and of Constitutional Courts, are appointed by a Praesidium of Judges. An act of the European Congress shall lay down criteria of the judge’s competence and suitability, and proper representation from all Member States. In no case may the legislative and executive branches influence the appointment of federal judges.
  3. Justice is administered in the name of the European Federal Union.
  4. No offence is punishable except by virtue of a preceding statutory provision. 
  5. Any interference in the investigation and prosecution of cases before the courts, either Federal courts or courts of the Member States, shall be prohibited.

Section 2 – Powers of the Federal Judicial Branch

1. The federal judicial branch has the power:
(a) to test laws and executive measures - either from the Federal Government or from Member States - against the federal Constitution;
(b) invalidate requests and attempts to amend the Constitution which weaken the values of the Preamble and the objectives of Article I, and their safeguards, which restrict the freedoms and rights of Citizens, or which corrupt the statutory coherence of this Constitution, especially as regards the separation of the three powers of the state;
(c) to judge in all conflicts arising under this Constitution with respect to all laws of the European Federal Union;
(d) to treaties made, or that shall be made under the authority of the European Federal Union;
(e) to all cases of a maritime, space and outer space nature;
(f) to all cases in which the European Federal Union is a party;
(g) to controversies between two or more Member States, between a Member State and Citizens of another Member State, between Citizens of several Member States, between Citizens of the same Member State in matters of property in another Member State and between a Member State or Citizens of that State and foreign States or Citizens thereof.

2. The Federal Supreme Court of Justice has the exclusive power in all cases in which Member States, Ministers, Ambassadors and Consuls of the European Federal Union are party. In all other cases, as mentioned in Clause 1, the Federal Supreme Court of Justice is the court of appeal, unless the European Congress decides otherwise by law.

3. Except in cases of impeachment, the trial of crimes, as determined by law, will be by jury. These trials will be held in the Member State where the crime has been committed. If they have not been committed within any Member State, the trial will be held at such place or places as decided by law by European Congress.

Section 3 – Powers of the Federal Supreme Court of Justice

1. The Federal Supreme Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Constitution;
(b) the validity and interpretation of acts of the institutions.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Federal Supreme Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under Member State law, that court or tribunal shall bring the matter before the Federal Supreme Court of Justice.  
The Federal Supreme Court of Justice shall refer a preliminary question to a Constitutional Court if there are doubts concerning the interpretation of the national identity of a Member State.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Federal Supreme Court of Justice shall act with the minimum of delay.

2. The Federal Supreme Court of Justice shall review the legality of legislative acts, of acts of the institutions, and of acts of the institutions, offices or agencies intended to produce legal effects vis-à-vis third parties. It shall for this purpose have jurisdiction in actions brought by a Member State, the powers on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Constitution or of any rule of law relating to their application, or misuse of powers.

3. Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

Section 4 – High Treason and (no) Death Penalty

  1. High treason against the European Federal Union shall only consist of levying war against the Federation, or of adhering to its enemies by giving them aid and comfort. No person shall be convicted of high treason without the testimony of at least two witnesses to the crime, or on confession in open court.
  2. The European Congress has the power to declare the punishment for high treason, but in no way a verdict of high treason shall lead to attainder or confiscation for the offspring of the convicted person.
  3. The European Federal Union does not allow and repudiates death penalty.

Explanatory Memorandum of Article VI: The Judicial Branch

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.

Article VI – The Judicial Branch

en_GBEnglish (UK)