Can the EU be a Constitutional System Without Universal Access to Judical Review

This Comment engages with a central dilemma about the legal order of the European Union: is the EU a constitutional system, a treaty system, or a hybrid system for which we must develop a new conceptual vocabulary? Besides intrinsic interest, resolving this categorization problem is important for deciding a number of issues in European Union law. For example, are legal strategies that are normally available to parties in international law viable in the European legal order? Should Community law be supreme over national law? If so, what limits should be placed on that supremacy, and “who should have the ultimate power to decide the boundaries of Community competence[?]” Although some scholars have properly cautioned that the answer to these questions “do not inexorably follow from the choice between the competing visions of Community legal order,” the categorization nonetheless suggests which alternative should more naturally follow. One might compare this European issue to the ongoing debate in the American legal community about whether the Constitution is an agreement between the states or an agreement between the people independent of the states. Although answering the question leaves much room for debate about the boundaries of federalism, it does suggest a great deal about one’s orientation, and in some cases may even determine the ultimate outcome.