Fundamental rights and the federal equilibrium: Comparing the doctrines of incorporation in the USA and the EU

Abstract

I analyse the process of incorporation of ‘federal’ rights in the United States and in the European Union. Both are forms of ‘selective incorporation’, but in a markedly different manner: in the US the selection depends on the type of right (rooted in the tradition of the nation and implicit in the concept of ordered liberty); in the EU it depends on the type of State action, namely whether the Member State is acting within the scope of EU law. After reconstructing the evolution of the two doctrines, I argue that this difference depends on the functions they have come to play. In the US, since the Sixties the incorporation of a right is a function of the national political equilibria mirrored in the composition of the Supreme Court; in the EU, the incorporation of EU rights was conceived to provide a check on the Member States when acting as agents of the Union but was transformed in the Conventions of 1999 and 2002 into a backstop against the expansion of EU powers. Recent developments such as the interpretation of Treaty clauses in the light of the Charter and rights-related financial conditionality are signs of growing discomfort with the backstop in the EU.