Multi-level citizenship in the antebellum USA and today''s European Union. A comparative study of citizenship concepts in Dred Scott and Rottman

In the Rottmann case the ECJ had to face the question if and to which extent the autonomy of European citizenship effects its dependency on Member State nationality with regards to the withdrawal of EU citizenship. The ECJ took a rather cautious approach and left this question open in principle as it has not been necessary to decide upon this issue in order to judge on the instant case. The ECJ, however, intimated that there is a certain autonomous element in European citizenship that might effect Member State’s nationality. Interestingly, the USA also faced a heated debate about the ‘nature’ of federal citizenship that, roughly 150 years ago, culminated in the infamous Dred Scott v. Sandford decision. Eventually, the 14th Amendment to the US Consti-tution would establish a unified ‘national citizenship’ and thereby resolved most (but by no means all) of the tensions that had existed in the antebellum US. Although the historic and socie-tal settings in the US prior to the Civil War were, of course, quite different compared to those of contemporary Europe, we argue that a comparative analysis of Scott v. Sandford can offer valu-able insights on the challenges of shaping the borders of European Citizenship. The ‘all or noth-ing’ approach of the US Supreme Court at that time did have a massive, even revolutionary im-pact on the USA, as this judgment is today perceived as the catalyst for the US-American Civil War. The opinions delivered with this judgment provide an interesting insight on the possible effects of overemphasizing either the dependency or autonomy element of citizenship in federal systems. Seen in that light, the ECJ’s very cautious and yet definite approach may highlight the positive effects of the often criticized Rottmann-case. Although the impact of the Scott v. Sand-ford judgment might hence serve as one explanation for the ECJ’s ruling, it may not be misinter-preted as a carte blanche for Member States to neglect the autonomous feature of European law. We argue that the European citizenship has indeed an autonomous value. As the withdrawal of Member State citizenship has hence to be justified by arguments from European law also, Mem-ber States may only withdrawal the European citizenship when their reasoning is soundly justi-fied by arguments from European law. According to the lack of primary and secondary law in this respect de lege lata, these minimum legal requirements need to be defined by the ECJ. Un-fortunately, in Rottmann, the ECJ missed the opportunity to do so in a coherent way.