16 The Failure to Grapple with Racial Capitalism in European Constitutionalism

This article provides a critical analysis of EU–US comparative constitutional research. While the EU–US comparison provided a fertile meeting ground during the Cold War for scholars interested in questions involving the rule of law, separation of powers, and federalism, it was also a minefield due to the tainted history of slavery at the heart of the US Constitution.¹ At a time when France and Belgium were still colonial powers, rather than comparing the history of slavery in the US with the history of European colonialism, the founders of the European integration project promoted the idea of a tabula rasa or ‘clean slate’ narrative after the horrors of the Nazi regime.² By the 1960s, scholars viewed the newly formed European Economic Community as a break from, rather than a partial continuation of, Nazism, fascism, and colonialism.³

US constitutionalism may have supplied ‘a common vocabulary for the language of European integration’ and a ‘conceptual toolbox’ to understand the rulings of the European Court of Justice (ECJ).⁴ But on the whole, European legal scholarship has shown a much greater interest in borrowing abstract concepts and terminology than in studying the less-than-pristine ways in which these concepts have been put to practical use in the United States. As a result, while US jurists have had to come to terms with the concept of racial capitalism⁵ and with the failure of the separate-but-equal doctrine,⁶ only a few scholars of European integration have attempted to trace the connection of authoritarian movements and white supremacist ideologies to Europe’s colonial past and capitalist foundations.⁷ This is important, we argue, because only by shedding light on Europe’s history of colonialism and racial differentiation inherent to capitalism can the project of integration continue towards a more inclusive, equal, and democratic constitutional settlement.⁸

Our contribution shows how influential scholars of European legal integration such as Eric Stein, Mauro Cappelletti, and Joseph H.H. Weiler provided important bridges between the two continents, but also contributed to the reproduction of a liberal legalist understanding of the evolution of US federal judiciary power as a neutral one. As a consequence, the dominant European constitutional law paradigm tends to marginalize the role of US states’ rights movements connected to racial subordination and economic inequality in the shaping of US federalism. A liberal legalist perspective, which places considerable confidence in the ability of judges to make wise decisions for the betterment of society,⁹ tends to downplay the fact that judicial law-making can lead (and has led) to the protection of slavery, the endorsement of segregation, and the entrenchment of laissez-faire and neoliberal policies—all with the imprimatur of the US Supreme Court’s judicial review power.¹⁰

This shortcoming runs in parallel with European law scholarship’s underappreciation of the role of Europe’s colonial past and a failure to grapple with racial capitalist dynamics that reinforced ethnic differentiations within the Community.¹¹ While formally ending colonialism, the European founding fathers were also ‘securing its continuation’¹² by protecting and encasing new trade and investment regimes between the Community and its former colonies.¹³ This aspect of the evolution of European law is incongruent with the image of the Community as a tabula rasa and has received only limited attention by lawyers. However, after the 2008 financial crisis which led to blame being placed on the ‘lazy’ Greeks and the ‘industrious’ Germans having the final say on the European Central Bank’s bailouts, the fiction of eliminating ethnicities in the European Union has instead reinforced new forms of racisms¹⁴ and market hierarchies¹⁵ which are well entrenched in European racial capitalism.¹⁶

We do not intend to suggest, implicitly or otherwise, that a closer reading of US legal history would provide scholars with a clear roadmap out of the current EU legal crises. The US Supreme Court most certainly has not discovered the ‘magic bullet’ that definitively settles the tension between local and federal powers, overcomes the legacy of white supremacy, or manages to fully grapple with racial capitalism.¹⁷ Our contention is considerably more modest; namely, that the unvarnished record provides scholars with more useful insights than the selective version of US constitutionalism that prevails in much European legal discourse.

In section II we turn our attention to the reception of US constitutionalism in Europe. The journey begins with Eric Stein’s contribution to the study of European Community law and narrates how, through his strategic friendship with Michel Gaudet, the director of the Commission’s Legal Services,¹⁸ Stein became a supporter of expanding the powers of the ECJ. Stein promoted an ambitious judicial constitutional project for Community law in the footsteps of the Warren Court. Stein’s approach also set aside some of the US Supreme Court’s most infamous rulings,¹⁹ which still haunt the Court to this day.²⁰ Because of the deep synergies between states’ rights and segregation policies supported by white supremacist ideologies in the US, Stein’s reluctance to engage with national resistances to federal power in Europe is perhaps understandable, but it had the consequence of presenting a rather skewed image of US constitutional law practice.

Section III focuses on the European reception of US-style federal judicial review, and in particular on its liberal legalist understanding through the influential works of Mauro Cappelletti and Joseph H.H. Weiler. Because of what Duncan Kennedy calls the ‘legitimation effect’,²¹ scholars of European integration still promote judicial review as a neutral instrument in the hands of supranational judges dedicated to the protection of individual rights and the resolution of quasi-federal conflicts based on institutional competence arguments rather than the very interests they are contending within it.²² Frequently underestimated in European legal scholarship are the periods when the US federal judicial power promoted racial segregation,²³ did not adequately protect minority rights through equal protection doctrines,²⁴ or endorsed freedom of contract to entrench laissez-faire policies.²⁵ In the mid-1980s, the resurgence of states’ rights jurisprudence with the new federalism of the Rehnquist Court altered market deregulation through limits to the Commerce Clause.²⁶ This new line of states’ rights jurisprudence was once again downplayed by European legal scholars focusing on US constitutionalism.²⁷

In section IV, we turn our attention to the consequences of setting aside the aspects of the US federal experience, such as states’ rights, that were synonymous with racial subordination and the entrenchment of economic inequalities. In either form, the constitutional doctrines of states’ rights were deemed irrelevant by scholars of European legal integration due to the fact that the ‘clean slate’ narrative could overcome racial subordination as ethnic differentiation characterizing the European Community. As powerfully described in Aimé Cesar’s Discourse on Colonialism, most scholars of European integration have avoided the obvious comparison between the US legitimation of slavery and the colonial and white supremacist ideologies at the root of the ‘Europe of Adenauer, Schuman and Bidault’.²⁸ In this way, scholars unable to come to terms with racial capitalism could construe a European constitutional utopia in which the ‘Echoes of Empire’²⁹ that were present since the Schuman declaration have been suppressed.³⁰

We begin with Eric Stein, author of the seminal article ‘Lawyers, Judges, and the Making of a Transnational Constitution’,³¹ and the person widely regarded as the main figure responsible for the ‘leading paradigm on the nature of European law’.³² In his 1981 essay, Stein argued that the ECJ had interpreted the founding treaties ‘in a constitutional mode rather than employing the traditional international law methodology’.³³ As Boerger has shown in her extensive research, Stein’s life experiences are relevant to his approach to US constitutional law doctrines and how he applied these concepts to analyse Community law.

Stein was born in 1913 into a Jewish family in Holice, a small town east of Prague, in what was then the Austro-Hungarian Empire. He received a classical civil law education at Charles University in Prague and was subsequently drafted into the Czech army. He served in the Czech infantry until March 1939, when the Nazis took control of the country and dissolved the Czech military. Stein fled Czechoslovakia in August 1939 and, after a harrowing journey, arrived in New York at the age of 26. In 1942, with financial assistance from his relatives, he graduated with a JD from the University of Michigan, and then proceeded to enlist in the US army. In 1946, Stein joined the US State Department’s newly formed Bureau of the United Nations, where he advised US representatives to the UN General Assembly and UN Security Council for nine years.

Stein followed the European integration process from its earliest days. His article ‘The European Coal and Steel Community: The Beginning of Its Judicial Process’ was the first English-language publication on the topic. In the same year it was published (1955), he joined the faculty of the University of Michigan Law School. As Boerger explains, Stein’s turn to European law coincided with his dissatisfaction with international law’s potential to ensure world peace.³⁴

In A Quiet Revolution,³⁵ Weiler, who became a law professor at the University of Michigan ‘thanks in part to the unconditional support of Stein’,³⁶ observed that the intellectual voyage from international law to EC law was typical for the first generation of scholars of European integration.³⁷ The Cold War was an inauspicious period for the construction of an international legal system. By contrast,

Community law and the ECJ were everything that an international lawyer could dream about: The Court was creating a new order of international law in which norms were norms, sanctions were sanctions, courts were central and frequently used … Community law, as transformed by the ECJ, was an antidote to the international legal malaise.³⁸

Stein’s path-breaking reconceptualization of Community law continues to influence EU legal scholarship to this day, but his work was by no means neutral or detached. For very understandable reasons, Stein had a clear vision of what he wanted the Community to become. And for the Community to achieve its potential as a peace-enhancing alternative to international law, it was essential that the ECJ gain power over state sovereignty and establish itself as the unquestioned highest authority in its jurisdiction.

Stein’s image of an authoritative and centralized supreme court appears to be heavily influenced by the nineteenth-century jurisprudence of Chief Justice John Marshall.³⁹ In the 1803 case of Marbury v Madison, the Marshall Court established the principle of judicial review, which empowered it to strike down federal legislation that conflicted with the US Constitution.⁴⁰ In McCulloch v Maryland, the Supreme Court ruled that a state tax levied on a federal bank incorporated by the government under the Necessary and Proper Clause was unconstitutional.⁴¹ In Martin v Hunter Lessee,⁴² Justice Story justified through popular sovereignty the Supreme Court’s judicial authority to strike down unconstitutional state laws to maintain national uniformity. In these, and many lesser-known decisions consolidating federal judicial supremacy,⁴³ advocates for states’ rights suffered a series of setbacks thanks to a cautiously interventionist Supreme Court.⁴⁴

The philosophy of natural law deeply influenced the drafters of the US Constitution.⁴⁵ In Federalist no. 78, Hamilton provided a very convincing picture of the federal courts as institutions without a ‘will’ and composed of a body of independent judges, professionally trained with life-tenure appointments. The Founding Fathers’ emphatic affirmation of the principles of fundamental law gave the Constitution, as Robert McCloskey put it, its ‘odor of sanctity’ and allowed the Supreme Court to assume a ‘priestly mantle’.⁴⁶ The ‘least dangerous branch’, according to Hamilton, was exactly what Chief Justice Marshall was planning to achieve in Marbury v Madison. In establishing the power of judicial review of the US Supreme Court, the justices interpreted the US Constitution within the boundaries established by fundamental law. But in practice, they too carried out their obligations within the boundaries of what ‘popular opinion would tolerate’.⁴⁷ The justices knew very well they could not become completely detached from what the people would accept.

The other more recent influence on Stein was the legacy of the Warren Court (1953–69), led by the progressive former California governor Chief Justice Earl Warren.⁴⁸ By the time Stein had received his law degree, the US Supreme Court had long overruled its laissez-faire jurisprudence⁴⁹ and the New Deal settlement had allowed newly elected justices to grant Congress greater leeway to regulate market activities, going as far as to authorize federal regulation of wheat grown on a local farm for local consumption.⁵⁰ While limiting its judicial scrutiny for individual economic rights,⁵¹ in 1938 the Carolene Products Court, in its famous footnote four, suggested it would undertake more rigorous judicial scrutiny when the civil liberties or civil rights of minorities were threatened due to an inability to access equal benefits.⁵²

When Stein began his career at Michigan Law School, the US Supreme Court ‘was a Court of gods—Black, Douglas, Warren—hurling thunderbolts to start our cultural revolutions’.⁵³ In 1954, in Brown v Board of Education, Chief Justice Warren famously affirmed that ‘in the field of public education the doctrine of “separate but equal” has no place’.⁵⁴ In Gideon v Wainwright, Warren worked hard behind the scenes to reach another unanimous ruling that, under the Sixth Amendment, required states to provide the right to counsel to defendants who were unable to afford a lawyer in criminal cases.⁵⁵ In Warren’s 5–4 Miranda v Arizona majority opinion, the Court held that the Fifth Amendment required that law enforcement officials advise suspects of their right to remain silent and to obtain an attorney during interrogations while in police custody.⁵⁶ Finally in 1967, Warren wrote another unanimous opinion, Loving v Virginia, that struck down a state law prohibiting inter racial marriage in violation of the Equal Protection and Due Process clause of the Fourteenth Amendment.⁵⁷ Such jurisprudence was rightly praised for rendering illegitimate the prevalent mechanisms and practices of racial discrimination. In retrospect, critical race scholars such as Derrick Bell have shown the failures for black youths of the judicial integrationist ideal,⁵⁸ while Sheila Foster pointed out how the notion of ‘racial agency’ was ‘lost in the translation of specific claims of racial injustice into abstract constitutional principle’.⁵⁹

Living, as Stein did, through a period when the Warren Court made marked advances in ‘the constitutional guarantee of equality between races, between voters, and between criminal defendants’,⁶⁰ it is not surprising that he invested much of his considerable intellectual and organizational talents in pursuit of the ‘constitutionalization’ of European Community law and the expansion of judicial supremacy while omitting the tainted history of the states’ rights and popular sovereignty jurisprudence.⁶¹

The delegates who drafted the US Constitution are often celebrated for producing a document that managed to win the support of a diverse group of states and statesmen, but as McCloskey memorably puts it: ‘this congenial result had been achieved not only by compromise but by forbearance.’⁶² Indeed, the US Constitution was so open-ended that genuine uncertainty existed in 1790 as to whether the document had created a league of sovereign states or a new nation. As states’ rights advocates repeatedly stressed from the period of the Marshall Court onward, had the Founding Fathers intended for the US Supreme Court to wield a tool as powerful as judicial review, it is odd that they should have granted it in such an oblique manner, rather than forthrightly.⁶³

In truth, the US Supreme Court’s rulings on the relationship between federal and state powers are non-coherent, and they remain politically contested to this day. Legal historians have highlighted how ideological shifts discernable in US constitutionalism tilt it either in favour of a federal plenary power or in favour of states’ rights. Thomas Jefferson, the principal author of the Declaration of Independence,⁶⁴ who was deeply influenced by the French revolutionary experience, was the period’s foremost advocate for popular sovereignty. For Jefferson, the states provided the most effective safeguard of the nation’s freedoms and self-rule, and the US Supreme Court had shamelessly exceeded its mandate. When the US Supreme Court decided, in Chisholm v Georgia (1793),⁶⁵ that for the purposes of the Union ‘Georgia is not a sovereign state’, Congress promptly passed the XI Amendment, which overrode the Court’s ruling and placed the states on a stronger footing vis-à-vis the federal courts.⁶⁶ Popular sovereignty acted at the same time as a source of legitimacy and a counterweight to judicial governance.

Surely Stein was well aware of this, but his work hardly explored the Jeffersonian perspective. As Boerger shows, Stein’s Bellagio grant to study the role of courts in building common markets became controversial because the ‘undertaking clearly bore a political overtone’.⁶⁷ Even Stein’s friend, and well-known comparative law scholar, Otto Kahn-Freund began to doubt the scientific method behind Stein’s project, which aimed to demonstrate how the highest courts in both the US and Europe represented the most ‘federalist constitutional organ’.⁶⁸ In highlighting the correspondence between these two scholars, Boerger shows that Khan-Freund was worried that Stein would dismiss too easily the ‘centrifugal forces, the resistances, the great power and the strong case of our “Jeffersonian” of 1979’.⁶⁹

Indeed, the work of the new European legal historians⁷⁰ has shed light on Jeffersonian attitudes in Europe through national resistances to European legal integration and to ECJ judicial governance, emanating not only from domestic courts but also from executive branches of governments, diplomatic circles, and the media.⁷¹ For instance, historians have traced the resistance of the Gaullistes in France at odds with Christian Democratic politicians such as Jacques Delors⁷² in their attempt to limit preliminary references to the ECJ.⁷³ In 1979 the National Assembly had to intervene to require domestic courts to accept the hierarchy of EC law over French national law.⁷⁴ In the Italian and German realms, the resistance was prominent in the early 1970s, spearheaded by Constitutional Court decisions such as Frontini⁷⁵ and Solange,⁷⁶ which asserted the predominance of domestic courts as the ultimate defenders of fundamental rights.

It might be a stretch to equate US popular sovereignty and the states’ rights jurisprudence of the US Supreme Court to the early national resistances in EU law. The latter were triggered by national constitutional courts seeking to affirm the relevance of fundamental rights against the ECJ⁷⁷ and by domestic judiciaries revamping their national legal traditions.⁷⁸ Nevertheless, it appears reasonably clear that Stein was not eager to recognize the legitimacy of the early opposition expressed by political and legal elites to the creation of a supranational legal order.⁷⁹

This section engages with the contributions of Mauro Cappelletti and Joseph H.H. Weiler to the European image of US-style judicial review. We argue that, in a manner analogous to Stein, who advocated for ECJ supremacy and downplayed US states’ rights movements, Cappelletti and Weiler exported to Europe a judicial review utopia—one which drew on the US experience, but side-stepped the political explosiveness that has regularly beset US Supreme Court judicial review in practice. By deploying the fiction of judicial neutrality, European law scholars advanced a more attractive blueprint for European legal integration than the US historical record actually offered.

In 1971, Cappelletti published Judicial Review in the Contemporary World, a short but highly influential book that traced the spread of judicial review from the United States to much of the rest of the world.⁸⁰ Through his book and later publications, Cappelletti presented judicial review as the ultimate safeguard of fundamental values against majoritarian political institutions.⁸¹ In a recent publication that builds on and extends Cappelletti’s work, Doreen Lustig and Weiler observe that Cappelletti viewed judicial review as an ‘unqualified public good’⁸² and courts ‘as the most efficient guarantee for the effectiveness and enforcement of’ individual rights and liberties.⁸³ In Cappelletti’s view, the revival of judicial review in Europe was a logical reaction to fascism and the Second World War, which ‘demonstrated the horrendous potential for tyranny, even majority tyranny, of governments not subject to constitutional restraint’.⁸⁴ Cappelletti readily acknowledged that judicial review was not implemented in the same way in every country, but he identified a cross-European consensus that unchecked parliamentary sovereignty had the potential to pose an existential threat to democratic governance.

Cappelletti was not only a proponent of judicial review in general terms. He also made it quite clear that he saw the ECJ, rather than the member state courts, as the proper institution to entrust ‘the ultimate judicial authority in the Community as regards questions of fundamental rights’.⁸⁵ In The Transformation of Europe, Weiler weaves a complementary theme into his own work, asserting that the constitutionalization of EU law was undoubtedly aided by ‘that deep-seated legitimacy that derives from the mythical neutrality and religious-like authority with which we invest our supreme courts’.⁸⁶ Faith in the power of judicial review as a superior arbiter defending individual rights or solving institutional conflicts without engaging with the underlying political economy and racial capitalism goes hand in glove with faith in the ability of judges to make rulings in a fair and impartial manner.

US legal realism has revealed the untold implications and ideologies disguised under liberal legalism in the rulings handed down during the Gilded Age by a Supreme Court that benefited property owners and business elites united by a common laissez-faire ideology.⁸⁷ Due to its low legitimacy in the aftermath of Dred Scott,⁸⁸ the Supreme Court focused strictly on questions of economic control rather than racial emancipation while endorsing liberal legalism and its abstract legal reasoning. As early as 1873 in the Slaughter-House Cases,⁸⁹ the plaintiffs’ lawyers made a creative argument using the Fourteenth Amendment, which was intended to eliminate racial subordination, to instead protect any person against state laws that would ‘deprive any person of life, liberty and property, without due process of law’.⁹⁰ The US Supreme Court gradually accepted the liberal notion that liberty of contract was enforceable as an individual right under the due process clause of the Fourteenth Amendment.⁹¹ A few years later, the US Supreme Court was ready to interpret the notion of freedom of contract as derived directly from Herbert Spencer.⁹² The Court reached the apex of its laissez-faire jurisprudence in Lochner v New York, which held that the freedom of contract was under substantive due process a limit to the valid exercise of states’ police powers.⁹³ Justice Oliver W. Holmes’s dissent rejected the notion of freedom of contract as a displacement of the basic notion that states had the power to regulate the economy. Instead he famously explained that the Constitution should not embody any particular economic theory and that general propositions should not decide concrete cases.⁹⁴

In his review essay ‘Why Read The Transformation of Europe Today?’, Komárek expresses scepticism about Weiler’s characterization of European courts as catalysts for change. For Komárek, Transformation is an article ‘about Europe’, but ‘embedded in the American culture of liberal legalism that had been dominant at law schools in the United States until the mid-1980s’. In particular, it ‘exhibits the trust in courts (especially the ECJ) similar to that of [American] legal liberals’.⁹⁵ This proposition led Weiler to overestimate the transformative power of European courts as detached from the socio-economic struggles dividing the Community along the North–South and, later on, the East–West cleavage.

Far from playing an ‘exalted role’ in the integration of EU law, Komárek argues that the European courts of the 1960s and 1970s were nothing more than institutional players, engaged in mundane, bureaucratic tasks: ‘There was nothing mystical or religious about them’, he concludes. While we agree with Komárek’s view, our task is to stress how Weiler’s communitarian philosophy, focusing on popular sovereignty and the lack of a European demos, was struggling with figuring out ways ahead for a Community as legitimated by its people.⁹⁶ Living in the US under the legacy of the Rehnquist Court, Weiler was not committed, as Stein was, to the form of US constitutional law interpretation that was espoused by ‘his’ US Supreme Court. To the contrary, he distanced himself from the Rehnquist Court and avoided reference to contemporary state rights’ doctrines when he addressed US-style judicial federalism.

Indeed, during the time period when Weiler was invoking a liberal legalist image of the ECJ and judicial federalism as a way to resolve institutional competence conflicts without engaging with the underlying political economy implications of federal adjudication, the Rehnquist Court was transforming US federalism. The Rehnquist Court was reinterpreting states’ rights in ways that were strongly opposed by liberals and praised by conservatives, also looking at Europe as a model for states’ rights.⁹⁷In the same year that Weiler published Transformation, David Day described the US Supreme Court in unabashedly political terms:

[T]he concept of federalism is a major doctrinal concern of the Rehnquist Court. After all, on the political level federalism has had close attachment to the Republican party and its recent domination of the Presidency. On the level of judicial doctrine, the modern federalism concept has provided a supportable and convenient vehicle for the conservative retrenchment of various constitutional doctrines.⁹⁸

The Rehnquist Court used its power of judicial review to strike down a federal law designed to regulate gun possession in school zones,⁹⁹ concluded that the federal government could not compel state officers to administer background checks on prospective handgun owners,¹⁰⁰ and ruled unconstitutional a law that provided a federal civil remedy for gender-based violence, arguing that Congress’ act threatened ‘to completely obliterate the Constitution’s distinction between national and local authority’.¹⁰¹

As scholars of US constitutional law and EU law, the most glaring omission we find in most European legal scholarship on US-style judicial review are the many instances when US courts failed to protect minorities from the tyranny of the majority. The US Supreme Court has suffered its fair share of crises of legitimacy, many of which have been precipitated by controversial judgments involving race relations and state rights. The Dred Scott Court endorsed slavery; the Plessy Court sided with racial segregationists and white supremacy ideology. These, and other decisions that comprise the so-called anti-canon of US constitutional law, will remain blights on the institution for as long as it exists. To take just one particularly egregious example, consider Dred Scott, which is broadly understood among US constitutional scholars and political scientists as the nadir of the US Supreme Court’s legitimacy.¹⁰² The legacy of Dred Scott still haunts the Court to this day. In Obergefell v Hodges,¹⁰³ the Court held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In his dissent, Chief Justice Roberts accused the majority of failing to uphold the principle of judicial restraint, leaving such decisions to the legislative branch or to the states—just as it had failed, with disastrous consequences, in Dred Scott.

Legitimacy is a precious commodity for the ‘least dangerous branch’.¹⁰⁴ Its independence is precarious—contingent on the support, or at a minimum the assent, of the public and the other branches. It is also fallible in entrenching economic inequalities and failing to grapple with racial capitalism. At times it has risen to the occasion, boldly protecting minority rights and fundamental values, but such task, depending on the judicial elites in power and the relevant socio-economic struggles, has not always proved capable of carrying out the august role that Cappelletti and Weiler have assigned to judicial review.

The failure to grapple with racial capitalism as racial differentiation and subordination in capitalist societies created an inadequate framework to address Europe’s post-war colonial legacy. Indeed, such a reckoning was, to European politicians and scholars alike, almost antithetical to the axiomatic fiction that Community law was created from a tabula rasa after the Second World War. In truth, Europe’s economy was solidly grounded in racial capitalism—the notion that racial differentiation would start in the West where the fabrication of whiteness began at the same time that capitalism emerged so that the two produced ‘racial capitalism’, a system able to justify slavery, violence, and imperialism.¹⁰⁵ This is because, as Cedric J. Robison explains, at the very same time that European labour was ‘herded into a newly formed industrial order’, African labour was globalized by the slave trade and incorporated in modern forms of production through racial subordination and exploitation.¹⁰⁶

International lawyers have shown how racial capitalism allowed the Spanish crown to appropriate and sell Africans though the Atlantic slave trade.¹⁰⁷ The literature produced by radical black Marxists since the 1950s is abundant and re-tells a story of the industrial revolution and the rise of the nineteenth-century bourgeoisie through the lens of racial capitalism.¹⁰⁸ More recently legal historians have carefully shown how the wealth accumulated through slave labour in cotton and tobacco industries during the industrial revolution was capitalized and securitized in the New York and London stock exchanges.¹⁰⁹

But rather than view this process as racial capitalism, the European founding fathers addressed it as part of their strategy to promote African economic development. The Schuman declaration of 9 May 1950, the founding document of the Coal and Steel Community, ends not only with the need to secure peace but also with the following sentence: ‘With increased resources Europe will be able to pursue the achievement of one of its essential tasks, namely, the development of the African continent.’¹¹⁰

Rather than openly engaging with racial capitalism as a central reason for the exploitation of the African continent, the notion of how Europe should contribute to ‘African development’ remerges today in the Commission’s Trade for All agenda.¹¹¹ The document effectively dismisses racial capitalism and the trade and migration effects of its colonial legacy.¹¹² The newly formed Commission committed to promoting a European Way of Life appears unprepared to acknowledge Europe’s role in promoting racial capitalism and its link to the rise of right-wing populist leaders with xenophobic traits in Hungary, Poland, and Italy.¹¹³ The idea that Europe’s colonial past justifies more generous migratory policies or redistribution through trade agreements with Europe’s former colonies enjoys little to no political support. To the extent that race remains on the agenda, politicians and scholars confine it, implicitly, to trade agreements¹¹⁴ and policies to address illegal immigrants at the borders.¹¹⁵

The relationship between racial structures and the accumulation of wealth and power in Europe similarly attracts relatively little attention in European law scholarship. The few exceptions include Eddie Bruce-Jones, who has linked institutional racisms to Europe’s colonial past;¹¹⁶ Iyiola Solanke, who has traced the deeper psychological roots of racial discrimination to theories of stigma;¹¹⁷ and scholarship that has shown how racism and ethnic differentiation are deeply entrenched in Europe’s treatment and stereotyping of the Roma population throughout the Union.¹¹⁸ Approaching the topic from a comparative perspective, some scholars have noticed how critical race theory, which has blossomed in US law schools since the 1980s, has faced stiff resistance in European law scholarship. Mathias Möschel has linked this outcome in European scholarship to a ‘double displacement’ entailing the fact that the colonies remain outside the European territory and that racism, in the form of antisemitism, has been formally outlawed in the continent since the Holocaust.¹¹⁹ At the formal level, antisemitism is harshly rejected by governments and constitutional courts, yet there is a growing resurgence of antisemitism, racism, and xenophobia in Europe, especially against Roma, immigrants, and non-white individuals.

In 2000, the EU adopted its first piece of anti-racist legislation: Directive 2000/43,¹²⁰ commonly known as the Race Equality Directive. It prohibits discrimination on grounds of race and ethnic origin in, among other areas, employment and access to goods and services. Shortly thereafter, the EU adopted a second piece of legislation, Directive 2000/78,¹²¹ also known as the Employment Equality Directive. This directive extends anti-discrimination protections to more grounds—religion or belief, disability, age, and sexual orientation—but applies only to the field of employment.

Among the protected grounds covered under EU law, race discrimination was the primary concern of EU legislators. In fact, it is probably not an overstatement to say that the fate of anti-racist legislation was a prerequisite for EU legislation covering all other grounds. Most accounts of the origins of Directive 2000/78 describe it as ‘riding in the wake of’ or ‘on the coattails’ of the momentum produced by the Race Equality Directive. And yet, since the adoption of the Race Equality Directive, only three judgments that address racial discrimination have reached the ECJ.¹²² Despite advances in many of the other ‘new’ grounds,¹²³ there appears to be an unwillingness or inability to enlist domestic courts to refer questions to the ECJ on race.

Early on, scholars such as Daniela Caruso pointed out the limits of positive action in the EU due to historical and conceptual underpinnings of the myth of identity blindness, especially in French law.¹²⁴ More recently, Mathilde Cohen’s interview-based study of the French judiciary strongly suggests that many French public officials are wary of even entertaining the possibility that race could play a role in how individuals are treated in society.¹²⁵ It is not difficult to imagine why the Race Equality Directive would be rarely invoked before a judiciary that ‘not only refuse[s] to name races and ethnicities, but also denie[s] the legitimacy of these categories’.¹²⁶

Two recent rulings, Achbita¹²⁷ and the case that joined to it, Bougnaoui,¹²⁸ illustrate the reluctance of the ECJ to confront racial discrimination head-on. In fairness to the court, neither was brought as a race discrimination case, although they certainly could have become one without too much interpretative stretch.¹²⁹  Achbita involved a Muslim woman who was instructed not to wear a hijab (headscarf) because it violated the employer’s neutrality policy. The ECJ sided with the employer, ruling that its interest outweighed Achbita’s. As AG Kokott forthrightly stated in the introduction to her opinion, the case came before the court during difficult times:

There is no need to highlight here the social sensitivity inherent in this issue, particularly in the current political and social context in which Europe is confronted with an arguably unprecedented influx of third-country migrants and the question of how best to integrate persons from a migrant background is the subject of intense debate in all quarters.¹³⁰

It is heavily disputed whether the Court struck the correct balance, in the current political climate, between the defendant-business’s interest in a secular workplace and Achbita’s freedom of religion.¹³¹ Less frequently discussed, but we think equally worthy of consideration, are the factors that led the plaintiffs to avoid framing the legal matter in terms of race discrimination.¹³²

We share Matej Avbelj’s intuition that the partial reception of US constitutionalism has misled scholarship on European legal integration.¹³³ At crucial moments in the intellectual history of EU law, this partial reception served a strategic purpose for scholars of legal integration. It provided the conceptual framework they needed to promote European constitutionalism, buttressed by an ostensibly politically neutral, supranational judicial review power for the ECJ. In Stein’s scheme, reflecting on the successful legacy of the Warren Court,¹³⁴ US constitutionalism was a promising model to strengthen the Community’s supranational constitutional project. In the works of Weiler and Cappelletti, judicial review became a normatively appealing and politically neutral legal tool of federal integration that ignored the near-concurrent revamping of states’ rights under the Rehnquist Court. But this partial reception also underplayed the United States’ politically contested judicial history and its roots in racial capitalism.¹³⁵

In European law scholarship, the comparison with a ‘US-inspired constitutionalism’ has often been deployed as an ahistorical and liberal legalist narrative of judicial review and federalism that has been moulded to fit integrationist agendas.¹³⁶ This selective reception of US constitutionalism has set aside national resistances, created self-defeating expectations, and, most importantly, blunted the legal tools necessary to address racial subordination and economic exploitation in EU law.

Today it is especially important to foreground the darker legacies of US constitutionalism and their many analogues in EU law instead of expelling them from the European constitutional heritage.¹³⁷ The project of European legal integration is now more important than ever, but it will not survive unless it confronts its own structural flaws. ‘Fortress Europe’ has created deep inequalities in the EU–African trade relationship, and these economic inequalities have returned to haunt Europe with unstoppable migratory fluxes. Market integration, as enforced by the ECJ in the name of free movement, has produced ambivalent distributive effects.¹³⁸ And the EU’s management of the sovereign debt crisis since 2010 has seriously undermined certain states’ ability to sustain social safety nets¹³⁹ and duly receive migrants.¹⁴⁰ In crafting a new constitutional paradigm, lawyers, judges, and scholars must now be especially wary of apolitical comparison without underlying socio-economic and racial capitalism implications.