France - Stephen P. Halbrook

2012] WHY CAN’T WE BE LIKE FRANCE? 1641
the Virginia Ratifying Convention of 1788, but did not discuss their
content. 15
Patrick Henry, a leading Antifederalist, had argued: “Switzerland is
a Confederacy, consisting of dissimilar Governments. . . . In this
vicinity of powerful and ambitious monarchs, they have retained their
independence, republican simplicity and valour.” 16
After James
Madison painted a gloomy picture of the Swiss Confederation, 17
Henry retorted:
Switzerland consists of thirteen cantons expressly confederated for
national defence. They have stood the shock of 400 years: That
country has enjoyed internal tranquillity most of that long
period. . . . Those virtuous and simple people have not a mighty and
splendid President—nor enormously expensive navies and armies to
support. . . . Let us follow their example, and be equally happy. The
Honorable member advises us to adopt a measure which will destroy
our Bill of Rights. 18
Without discussion of Henry’s oratory, Justice Scalia concluded:
“The fact is that our federalism is not Europe’s. It is ‘the unique
contribution of the Framers to political science and political
theory.’” 19
He did not analyze whether federalism in Europe may be
quite diverse, an irrelevant issue given that the only issue was the
meaning of the U.S. Constitution.
Justice Breyer, joined by Justice Stevens, argued in dissent that
European models in which states implement laws passed by the
central authority should counsel interpretation of the U.S.
Constitution as a matter of policy. 20
“The federal systems of
Switzerland, Germany, and the European Union, for example, all
provide that constituent states, not federal bureaucracies, will
themselves implement many of the laws, rules, regulations, or decrees
enacted by the central ‘federal’ body.” 21
But these entities could not
be more diverse: (1) Switzerland is the Confederation Helvetia,
where the central government is limited and the Cantons retain great
15. Id.
16. 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION
966 (John P. Kaminski & Gaspare J. Saladino eds., 1990).
17. See id. at 994, 1030.
18. Id. at 1040-41.
19. Printz, 521 U.S. at 921 n.11 (quoting United States v. Lopez, 514 U.S. 549, 575
(1995) (Kennedy, J., concurring) (citation omitted)).
20. See id. at 976–77 (Breyer, J., dissenting).
21. Id. at 976.