Beyond Incomplete Dichotomies: A Structural Typology of Dual Rights in the EU and the US

Abstract

The two widely used dichotomies of floor/ceiling and centralization/decentralization often fail to capture the full interactions of rights in multilevel constitutional systems such as the EU or the US. This article offers a comprehensive yet straightforward classification linking rights to the division of power between the center and component states. The typology comprises three overarching categories: plurality, partial and full centrality. These categories are broken down into further subcategories and illustrated through comparative examples from the EU and the US. The typology reveals mezzanine structural levels which go unnoticed when analysis is confined to existing dichotomies. The purpose of the typology is, first, to facilitate more accurate comparisons of the EU and the US’s composite systems and make commonalities and divergences easier to identify. Second, through the ensuing clarity, it aids the normative inquiry into what level of government—the center or the state—is better suited to regulate different types of rights and to what extent. Thirdly, it reconnects the EU-US comparison with comparative constitutionalism’s Aristotelian pedigree of utilizing robust categorization as a necessary cognitive tool for maintaining rationally ordered analyses.

Keywords

• Multilevel Constitutionalism
• Fundamental Rights in the EU & the US
• Leaky Floors and Ceilings
• Typologies