People demonstrate in front of the Constitutional Tribunal building, during a session ruling on whether several articles of EU Treaties comply with the Polish Constitution in Warsaw, Poland on October 7 2021. Picture: JACEK MARCZEWSKI/Agencja Gazeta via REUTERS
Brussels, obviously, cannot let this stand. That situation would overturn the EU’s presumed vertical hierarchy, in which the European Court, based in Luxembourg, sits atop the 27-member nations’ high courts the same way the US Supreme Court has primacy over state courts. Last year, for example, Germany’s highest court also produced a verdict that appeared to question Luxembourg’s presumed primacy. But the German judges in Karlsruhe used more diplomatic language, and the case concerned the arcane subject of bond purchases by the European Central Bank, so it blew over.
The better way of dealing with such ambiguous sovereignty is to write a constitution, as the fledgling US did in 1787. Even that wasn’t an immediate fix — the high courts of Virginia and other states spent years challenging the primacy of the US. Supreme Court. But law and precedent eventually clarified the federal architecture that exists today.
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